Western Australian Institute of Sport Inc.
[2010] FWA 5367
•21 JULY 2010
[2010] FWA 5367 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Western Australian Institute of Sport Inc.
(AG2010/10645)
Sporting organisations | |
COMMISSIONER WILLIAMS | PERTH, 21 JULY 2010 |
Application to terminate a collective agreement-based transitional instrument – whether termination of the agreement contrary to the public interest – whether it is appropriate to terminate the agreement – Fair Work (Transitional Provisions and Consequential Amendments Act) 2009- Schedule 3, Item 16 – Fair Work Act 2009- ss 225, 226.
[1] This decision concerns an application by the Western Australian Institute of Sport (WAIS) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s 225 of the Fair Work Act 2009 (the FW Act)to terminate the Western Australian Institute of Sport Certified 2006 - 2008 (the Agreement).
[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 31 December 2008. The Agreement currently applies to all the employees of the applicant. There is no employee organisation covered by the agreement.
The Legislation
[3] Item 16 of Schedule 3 of the Transitional Act provides:
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] Subdivision D of Division 7 of Part 2-4 of the FW Act states:
s. 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.
s. 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.
[5] Section 226 directs the Tribunal to the considerations to be taken into account and the tests to be applied to determine this matter. It displaces any general discretion in the matter.
[6] Evidence was provided by Mr Steve Lawrence the Executive Director of the WAIS. His evidence addressed each of the matters in s 226 which will determine whether Fair Work Australia is required by that section to terminate the Agreement. Importantly his evidence was that the staff covered by the Agreement have been consulted over its termination and are aware it will be terminated and he has received no adverse communications regarding this course of action.
[7] No employees have made submissions to Fair Work Australia opposing the termination of the agreement.
[8] I had requested at the conclusion of Mr Lawrence’s evidence that he provide more detail of the rates of salary payable under the Agreement and those that will apply if the Agreement is a terminated. This information has been supplied and having reviewed that material I accept the evidence of Mr Lawrence that the new contracts to apply to the employees involve increases in their terms and conditions.
[9] No submissions that termination of the Agreement would be contrary to the public interest have been received.
[10] Therefore on the basis of the evidence of Mr Lawrence I am satisfied, in accordance with s.226 (a), that it is not contrary to the public interest to terminate the Agreement. I am also satisfied, in accordance with s.226 (b)(i),(ii), that it is appropriate to terminate the agreement having regard to all the circumstances of the matter. I am therefore required by s.226 of the FW Act to terminate the Agreement. I will issue an order to that effect in conjunction with this decision.
COMMISSIONER
Appearances:
Mr A Drake-Brockman, Partner, DLA Phillips Fox on behalf of the Applicant.
Hearing details:
2010
Perth:
July 13
Final written submissions:
Printed by authority of the Commonwealth Government Printer
<Price code A, AG879226 PR999495 >
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