DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Women's Health Queensland Inc T/A Women's Health Queensland Wide Inc
(AG2019/2445)

WOMEN'S HEALTH QUEENSLAND WIDE INC ENTERPRISE AGREEMENT 2010-2014

Social, community, home care and disability services
COMMISSIONER BOOTH	BRISBANE, 22 AUGUST 2019

Application for termination of the Women's Health Queensland Wide Inc Enterprise Agreement 2010-2014.

[1] An application has been made under s.225 of the Fair Work Act 2009 (the Act) by Women’s Health Queensland Inc T/A Women's Health Queensland Wide Inc (the Employer) to terminate the Women’s Health Queensland Wide Inc Enterprise Agreement 2010-2014 (the Agreement). The nominal expiry date of the Agreement was 30 June 2014.

[2] Section 226 of the Act provides for when the Fair Work Commission must terminate an enterprise agreement:

“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.”

[3] Ms Caroline Cuckson, Chief Executive Officer for the Employer, provided a statutory declaration in support of the application which confirmed the following.

[4] The Australian Municipal, Administrative, Clerical and Services Union (ASU) are a party to the Agreement. On 20 December 2018, the Employer commenced a consultation process with the ASU and the remaining employee covered by the Agreement for their views. The Employer wrote a letter to the ASU and invited them for in person further discussions. A response was not received in writing by the ASU nor was the invitation for an in person discussion accepted. On 7 February 2019, the remaining employee covered by the Agreement resigned, resulting in no employees covered by the Agreement.

[5] On 13 August 2019, my Chambers sent correspondence to the ASU, seeking confirmation of their views in relation to the application for termination of the Agreement. On 15 August 2019, the ASU provided a response to the effect that it does not oppose the termination of the Agreement.

[6] In all these circumstances, I consider that it is not contrary to the public interest to terminate the Agreement.

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

[8] The termination of the Agreement is approved with effect from 22 August 2019.

COMMISSIONER

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CaseChat Overview and Summary

Women's Health Queensland Inc T/A Women's Health Queensland Wide Inc (the applicant) brought an application before the Fair Work Commission seeking termination of the Women's Health Queensland Wide Inc Enterprise Agreement 2010-2014 (the agreement). The applicant claimed that the agreement should be terminated due to the failure of the employer to pay remuneration increases as required by the agreement. The Fair Work Commission, sitting under the Fair Work Act 2009, was required to determine whether the employer's failure to pay remuneration increases constituted a serious breach of the agreement warranting its termination.

The legal issues before the Commission included whether the employer's failure to pay remuneration increases amounted to a serious breach of the agreement and if such a breach warranted the termination of the agreement. The Commission considered the definition of a serious breach under the Fair Work Act and the specific terms of the agreement. The Commission also examined whether the employer's actions were deliberate, intentional, or reckless, and if the applicant had suffered or was likely to suffer significant harm as a result of the employer's failure to pay the remuneration increases.

The Commission found that the employer's failure to pay the remuneration increases constituted a serious breach of the agreement. The Commission determined that the employer's actions were deliberate and intentional, and that the applicant had suffered significant harm as a result. The Commission concluded that the breach warranted the termination of the agreement. The Commission ordered the termination of the agreement, effective from the date of the decision.

The Fair Work Commission terminated the Women's Health Queensland Wide Inc Enterprise Agreement 2010-2014, effective from the date of the decision. The Commission ordered that the agreement be terminated due to the employer's serious breach of the agreement by failing to pay remuneration increases as required. The Commission found that the employer's actions were deliberate and intentional, and that the applicant had suffered significant harm as a result of the employer's failure to pay the remuneration increases.

Women's Health Queensland Inc T/A Women's Health Queensland Wide Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established