Wallara Australia Ltd

[2010] FWA 7182

[2010] FWA 7182

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Wallara Australia Ltd
(AG2010/14038)

COMMISSIONER LEWIN MELBOURNE, 15 SEPTEMBER 2010

Application to terminate a collective based transitional instrument.

[1] This decision concerns an application by Wallara Australia Ltd for an Order to terminate the Wallara Industries (Supported Employment) Agreement 2005 (the Agreement) pursuant to s.225 of the Fair Work Act 2009.

[2] The Agreement is a pre-reform certified agreement as defined in s.4 of the Workplace Relations Act 1996 and is therefore a collective agreement-based transitional instrument as provided for by Schedule 3, Part 2, Item 2(5)(c)(i) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Chapter 2, Part 2, Division 7, Subdivision C—Termination of enterprise agreements by employers and employees of the Fair Work Act 2009 applies to collective agreement-based transitional instruments pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 which is set out below:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Section 225 of the Act sets out the parties who may apply for an order to terminate an enterprise agreement after its nominal expiry date and is set out below:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[5] Wallara Australia Limited, the applicant in this matter, is a named employer under clause 3.1 of the Agreement. It is therefore a party who is eligible to make an application for the termination of the agreement under s.225 of the Act.

[6] In determining whether or not to terminate the Agreement the Tribunal must take into account the considerations prescribed by s.226 of the Act which are set out below:

“226 When FWA must terminate an enterprise agreement

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

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

(b) FWA 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.”

[7] On 10 September 2010, Walarra Australia Limited filed submissions and materials in support of their application to terminate the Agreement. The submissions are in a letter dated 7 September 2010. Wallara set out the steps taken to inform the employees of Wallara’s intention to terminate the agreement and to obtain consent from the employees. The letter was in the following terms:

“1. In the week starting 9 August 2010 meetings were held with all supported employees to explain the proposal to terminate the Wallara Agreement (EBA) and to trigger coverage under the new modern Award (The Supported Employment services Award—MA000103).

2. Each of those meetings went for approximately 40 minutes and were led by the CEO Phil Hayes-Brown. Support and Production Managers were also in attendance to ensure plain effective language was used, to assist with the explanation process and to encourage questions.

3. After the explanation the supported employees had the opportunity to ask questions. Then all supported employees were handed a letter explaining the proposed change to take home to their families/carers. If the supported employees agreed with the proposed change they were asked to sign the letter in the space provided to record their consent.

4. Each supported employee was encouraged to ask questions and meet with staff or management at any time to discuss. Out of 95 supported employees, we have received 71 signed consents (75%).

5. A copy of the letter handed to employees is attached for reference.

6. As detailed in the letter, the Modern Award was recommended to Supported Employees because:

a. the key terms of employment have not materially changed. For example, entitlements to leave, overtime rates and base rates are virtually identical.

b. the Modern Award had been especially created for workplaces like Wallara Industries; and

c. some entitlements (e.g. superannuation) had been improved.

7. The letter also noted that the Board of Management at Wallara had agreed to pay all Supported Employees superannuation on all ordinary time earnings from when the new Modern Award commences, which is above the actual Award requirement. This offer was made because Wallara prides itself on leading the way in the disability sector and this is another example of the organisation setting new standards.

Public interest

[8] There is nothing before me to indicate that the termination of the Agreement would be contrary to the public interest.

Views of the employees

[9] Copies of the 71 signed consent forms were filed in Chambers with the abovementioned submissions on 10 September 2010. I am satisfied that the majority employees support the termination of the Agreement in accordance with s.226(b)(i) of the Act.

Views of the employer

[10] Wallara is the applicant in this matter and supports the application for the order.

Likely effect of the order on employees

[11] In the letter sent to employees in support of the application for termination of the Agreement, the employee recommend the termination because “the key terms of the employment have not materially changed” and some entitlements, for example, superannuation entitlements would be improved in the event that the Agreement were terminated and the employment of the employees were to be covered by Supported Employment Services Award 2010.

[12] I have read the terms of the agreement and the terms of the Supported Employment Services Award 2010 and, in accordance with s.226(b)(ii) of the Act, I am satisfied that the termination of the Agreement will not have an adverse affect on the employees.

[13] I am satisfied that the preconditions in s.226 of the Act have been met. I must therefore issue an order to terminate the Agreement.

COMMISSIONER

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