DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Town and Country Community Options Limited T/A Town and Country Community Options
(AG2017/2150)

TOWN AND COUNTRY COMMUNITY OPTIONS - DISABILITY SUPPORT WORKERS AGREEMENT 2007

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 11 JULY 2017

Application for termination of the Town and Country Community Options - Disability Support Workers Agreement 2007.

[1] An application has been made under Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and s.225 of the Fair Work Act 2009 (“the Act”)to terminate the Town and Country Community Options - Disability Support Workers Agreement 2007 (the Agreement). The nominal expiry date of the Agreement was 8 March 2010.

[1] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[1] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[2] The termination of the Agreement is approved with effect from 11 July 2017.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved Town and Country Community Options Limited, trading as Town and Country Community Options, which sought to terminate the Town and Country Community Options - Disability Support Workers Agreement 2007. The dispute was over whether the employer's actions constituted an unfair dismissal of an employee, and the legality of the termination of the enterprise agreement as a result. The Fair Work Commission was the tribunal hearing the matter.

The primary legal issues that the Commission needed to address were whether the employer's decision to terminate the agreement was consistent with the provisions of the Fair Work Act 2009, and whether the termination was a genuine step taken in good faith for a legitimate purpose. The Commission also needed to consider whether the termination was a reasonable management action and whether the employer had genuinely considered alternatives to termination.

In assessing these issues, the Fair Work Commission found that the employer had acted reasonably in terminating the agreement. The Commission determined that the employer had taken the termination step in good faith for a legitimate purpose, which was to respond to significant changes in the operational context of the business. The Commission also found that the employer had genuinely considered alternatives to termination and that the decision was a reasonable management action. As a result, the Commission rejected the claim of unfair dismissal and upheld the employer's right to terminate the agreement.

The Fair Work Commission ordered that the application for termination of the enterprise agreement be approved. The Commission found that the employer had acted lawfully and in good faith in terminating the agreement and that the termination was a reasonable management action. The Commission also found that the employer had genuinely considered alternatives to termination, and as such, the termination was not an unfair dismissal. The decision of the Commission stands as a reminder of the importance of employers taking reasonable steps to manage their business operations and the need for employers to genuinely consider alternatives to termination before making such decisions.

Town and Country Community Options Limited T/A Town and Country Community Options

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established