Women’s Liberation Halfway House Inc T/A Women’s Liberation Halfway House
[2021] FWCA 3093
•11 JUNE 2021
| [2021] FWCA 3093 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Women’s Liberation Halfway House Inc T/A Women’s Liberation Halfway House
(AG2021/4904)
WOMEN’S LIBERATION HALFWAY HOUSE ENTERPRISE AGREEMENT 1999
Health and welfare services | |
DEPUTY PRESIDENT YOUNG | MELBOURNE, 11 JUNE 2021 |
Application for termination of the Women’s Liberation Halfway House Enterprise Agreement 1999.
[1] On 30 April 2021, Women’s Liberation Halfway House Inc T/A Women’s Liberation Halfway House (Applicant) applied pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Women’s Liberation Halfway House Enterprise Agreement 1999 (Agreement). The Agreement came into force on 10 February 2000 and nominally expired on 9 February 2002. The Applicant is the employer covered by the Agreement. The Australian Municipal, Administrative, Clerical and Services Union (ASU) is a party to the Agreement.
Legislative context
[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement based transitional instrument.
[3] Section 225 of the Act provides:
“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 the FWC 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.”
[4] Section 226 of the Act provides:
“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.”
Standing
[5] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.
Directions
[6] On 4 May 2021 I issued directions requiring the Applicant to provide submissions and evidence as to why the Agreement should be terminated, which was to include any evidence on which it seeks to rely in support of the application and submissions that address the requirements of section 226 of the Act. Submissions were filed in the Commission on 11 May 2021.
[7] The directions required the ASU to provide materials in response to the application regarding their views by close of business 18 May 2021. Submissions opposing the termination of the Agreement were filed in the Commission by the ASU on 18 May 2021.
[8] The directions required that the Applicant serve the Form F24B application, Form F24C declaration, a copy of my directions, and the submissions filed on 11 May 2021 and 18 May 2021 on all employees of the Applicant by 19 May 2021. The Applicant filed a statutory declaration confirming service on 19 May 2021 in accordance with the directions.
[9] The directions required that if the Applicant, the ASU or any employee of the Applicant wished to be heard with the respect of the application, they were to contact the Commission by close of business 26 May 2021. No further correspondence was received by the Commission.
[10] In the absence of any party seeking to be heard, I have determined to deal the Application on the papers without the need for a hearing.
[11] For the following reasons I have determined that the Commission must terminate the Agreement.
Background
[12] The Applicant provides specialist family violence services. The Applicant employs five part-time employees. 1
[13] The Agreement expired in excess of 19 years ago. The Agreement binds the Applicant, the ASU and its members. 2 The Applicant is unaware of whether any employees are presently covered by the Agreement.3 The ASU led no evidence nor made any submissions as to how many employees of the Applicant are members of the ASU and therefore how many employees, if any, the Agreement currently applies to. I note however that in its submissions the ASU refers to having consulted with its members4. Notwithstanding that, on the material currently before the Commission is it unclear as to whether there are any employees currently covered by the Agreement.
[14] It is uncontested that the effect of terminating the Agreement will be that the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) will cover and apply to employees of the Applicant to whom the Agreement applies, if any.
Consideration
Not contrary to the public interest – section 226(a)
[15] In Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd5(Aurizon), the Full Bench concluded, drawing on the decision in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 20006 (Kellogg) that the ‘public interest’ refers to matters that might affect the public as a whole, such as the achievement or otherwise of the objects of the Act, employment levels, inflation and the maintenance of proper industrial standards. The public interest is distinct in nature from the interests of the parties, though those matters may be simultaneously affected.7
[16] The Applicant submits that termination of the Agreement would have no impact on and is not contrary to the public interest. It submits that the Act does not guarantee the terms and conditions contained in an agreement which has passed its nominal expiry date. It submits further that it cannot be expected that an agreement which has passed its nominal expiry date would continue to apply unaltered in perpetuity. 8
[17] The ASU submits that it is not in the interests of employees for the Agreement to be terminated. It submits that the Agreement contains certain more beneficial entitlements than those in the SCHADS Award, specifically a more beneficial entitlement to personal leave. 9 The ASU submits in this context it would be contrary to the public interest to terminate the Agreement as it would prevent employees from accessing the dispute settlement procedures under the Agreement to pursue disputes in relation to entitlements accrued under the Agreement and thereby removing a low cost and quick avenue for employees to pursue these entitlements.10
[18] I accept the submissions of the Applicant that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its nominal expiry date. This was made clear in Aurizon. The Act contemplates the terms and conditions may be altered by making a new agreement or by terminating the existing agreement. Further, the Act clearly contemplates an agreement that still applies to employees (if that indeed be the case here) being terminated. As was also recognised in Aurizon, section 226 of the Act is not limited to circumstances in which an agreement no longer applies to any employee. The Act prescribes a safety net upon termination in such circumstances, being the relevant modern award (in this case the SCHADS Award) and the National Employment Standards (NES).
[19] As to the ASU’s submission regarding the public interest, I reject the submission that termination of the Agreement would be contrary to the public interest as it would prevent employees from accessing the dispute settlement procedures under the Agreement to pursue disputes in relation to entitlements accrued under the Agreement and thereby removing a low cost and quick avenue for employees to pursue these entitlements. It is well established that the enforcement of past rights is the exercise of judicial power and, as such, it is impermissible for the Commission to order the enforcement of accrued past entitlements pursuant to the dispute resolution procedure in the Agreement, although I accept that the Commission could deal with a dispute as to the quantum of an employee’s personal leave entitlement. However, enforcement of such past entitlements is a matter for the Court and the termination of the Agreement would in no way alter that. I also reject that termination of the Agreement is contrary to the public interest because employees’ entitlement to personal leave (being the only entitlement specifically identified by the ASU as being more beneficial) would be reduced. Firstly, I do not consider this is a matter going to the public interest. Rather, in my view, it goes to the interests of employees. Secondly, whilst termination of the Agreement would result in a lesser entitlement to personal leave it would not result in the absence of proper industrial standards for employees of the Applicant. Their employment would be subject to the SCHADS Award and the NES. This provides for “proper industrial standards” as that term is used in Kellogg. I further address the personal leave entitlement under the Agreement below.
[20] Section 226(a) does not require the Commission to be satisfied that the termination of the Agreement is in the public interest. The Commission must be satisfied that it is not contrary to the public interest to terminate the Agreement. Based on the material filed with the Commission, I am satisfied that the termination of the Agreement is not contrary to the public interest.
Appropriateness of terminating the Agreement – section 226(b)
[21] The Applicant supports termination of the Agreement. The Applicant submits that the Agreement expired 21 years ago and that the Award referenced in the Agreement, the Cash Award (Crisis Assistance, Supported Housing) Award 1991 (Cash Award), is no longer in existence. It submits that many of the processes within the Agreement are now covered by organisational policies and procedures and that the Agreement contains outdated processes such as the requirement that employees by paid by cheque. Further, the Applicant submits that the Agreement refers to a Collective structure however since 2010 the Applicant has been governed by a Board, pursuant to a constitution. 11 None of these matters were contested by the ASU.
[22] The ASU submits that the Agreement should not be terminated because it contains some entitlements that are more beneficial than those in the SCHADS Award.It submits that maintenance of these conditions and entitlements is in the best interest of Employees to whom the Agreement applies. 12 However, the only entitlement expressly identified by the ASU as being more beneficial under the Agreement is the entitlement to personal leave.13 The ASU submits that it would not be in the best interest of those employed under the Agreement to terminate the Agreement and that employees may wish to pursue back pay claims for leave under the Agreement which “has historically not been honoured or paid at the correct rate.”14
[23] As already set out, the Agreement expired 19 years ago. The Applicant did not file any submissions or evidence as to the benefits and entitlements provided under the Agreement relative to the benefits and entitlements provided under the SCHADS Award. However, in its submissions the ASU conceded that the Agreement has been replaced in many areas by the SCHADS Award. 15
[24] Clause 5 of the Agreement provides that it is to be read and interpreted in conjunction with the Cash Award. The Cash Award was a consent award made under the Industrial Relations Act 1988 (Cth). The Cash Award was consolidated into the Crisis Assistance, Supported Housing Award 2002 and following the creation of modern awards under the Act is no longer in existence. Further, I accept that the Agreement refers to governance by a Collective structure. In the absence of any contest by the ASU, I accept the submission that this is no longer appropriate for or consistent with the present governance arrangements and structure of the Applicant. 16 Finally, in the absence of any contest from the ASU I also accept the Applicant’s submission that many of the processes within the Agreement are now covered by the Applicant’s policies and procedures and that the Agreement contains certain outdated processes, such as requiring payment by cheque.17
[25] As to the ASU’s submission regarding personal leave entitlements under the Agreement, clause 44 of the Agreement provides a personal leave entitlement of one working day for each month of service in the first year of service, 14 working days in the second, third and fourth years of service and 21 working days in each year thereafter. This is clearly a greater entitlement to personal leave than that provided under the SCHADS Award, which provides that personal leave is in accordance with the NES. 18 The ASU submits that in these circumstances not only is it not in the interest of employees covered by the Agreement to terminate the Agreement, but they may wish to pursue backpay claims for leave that they were entitled to under the Agreement which was not provided or was not paid at the correct rate.19
[26] I accept that the entitlement to personal leave under the Agreement is more beneficial than that provided under the SCHADS Award and that termination of the Agreement would result in employees having a lesser entitlement to personal leave. However, the entitlement to personal leave under the SCHADS Award is in accordance with the NES and is therefore consistent with applicable legislative and industrial standards. The SCHADS Award ensures that proper industrial standards will be provided for employees of the Applicant.
[27] I reject the submission that termination of the Agreement would prevent employees from pursuing claims for backpay for personal leave they were entitled to but did not receive or which was not paid at the correct rate. Firstly, the entitlement is a contingent one and there is no evidence before the Commission that any employee was not provided with paid personal leave in circumstances where they had such an entitlement under the Agreement. Secondly, there is also no evidence to support the ASU’s assertion, which is unsupported by any particularisation, that employees were not paid for personal leave at the correct rate of pay. Thirdly, accrued but unused personal leave is not paid out on termination: it is an entitlement to be used during employment. Fourthly, termination of the Agreement would not extinguish a past right and claims for backpay for personal leave either not granted or not paid at the correct rate, may still be pursued in the appropriate jurisdiction, subject to any applicable time limits which apply to such applications.
Conclusion
[28] Having considered the material contained in the Form F24C declaration filed with the application, the submissions filed by the Applicant on 11 May 2021 and the submissions filed by the ASU on 18 May 2021, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in section 226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Agreement.
[29] Accordingly, I must terminate the Agreement. The termination will operate from the date of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AG803635 PR730276>
1 Applicant’s submissions, 11 May 2021 at paragraph 11
2 Women’s Liberation Halfway House Enterprise Agreement 1999 at clause 3
3 Form F24C at q.2.2
4 Australian Municipal, Administrative, Clerical and Services Union (ASU) submissions, 18 May 2021 at paragraph 2
5 [2015] FWCFB 540
6 (2005) 139 IR 34
7 Ibid at [129]
8 Applicant’s submissions, 11 May 2021 at paragraph 3
9 ASU submissions, 18 May 2021 at paragraph 3 and 4
10 Ibid at paragraph 5 to 7
11 Form F24C at q.2.1
12 ASU submissions, 18 May 2021 at paragraph 3
13 Ibid at paragraph 4
14 Ibid at paragraph 5
15 Ibid at paragraph 3
16 Form F24C at q.2.1
17 Women’s Liberation Halfway House Enterprise Agreement 1999 at clause 24
18 Social, Community, Home Care and Disability Services Industry Award 2021 at clause 32
19 ASU submissions, 18 May 2021 at paragraph 5
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