Woodlands Retirement Village Limited

[2015] FWC 3764

[2015] FWC 3764

FAIR WORK COMMISSION

DECISION

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

Woodlands Retirement Village Limited
(AG2015/1163)

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 4 JUNE 2015

Application for termination of the Woodlands Retirement Village Certified Agreement 2002.

[1] This decision concerns an application by Woodlands Retirement Village Limited (the employer), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the Woodlands Retirement Village Certified Agreement 2002 (the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 28 July 2005.

The relevant 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 Act states:

"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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement."

[5] A statutory declaration was received from Ms Sandra Mitchell, Manager of the employer, dated 18 May 2015. The statutory declaration explained the reasons for seeking termination of the Agreement. These were:

(a) the Agreement was made in 2002, and passed its nominal expiry date nearly ten years ago in 2005;

(b) the Agreement was made prior to changes to the Workplace Relations Amendment (WorkChoices) Act 2005, the Fair Work Act 2009 and Modern Awards, and accordingly:

(i) The Agreement contains provisions that are outdated, with conditions (for example allowances, shift work rates and overtime rates) less favourable than the Aged Care Award 2010

(ii) The Agreement includes some provisions which give rise to ambiguity or uncertainty about the hourly rate for employees (for example, “flat packaged” rates for a sleepover shift) and includes provisions outdated by the National Employment Standards (for example, the pre-payment of annual and “sick” leave and amounts of leave an employee may take in any 12-month period.)

(c) that voluntary measures taken by the Applicant, including pay increases, have meant that the Certified Agreement serve no practical purpose.

[6] Termination of the Agreement will result in the Aged Care Award 2010 (the Award) applying to all employees. The impact of the termination of the Agreement on these employees' terms and conditions will be an overall improvement in their terms and conditions.

[7] The Applicant was directed to serve on employees a copy of the application together with the notice of listing and a copy of Directions dated 26 May 2015. If any party opposed the application, advice was directed to be given to my chambers, in writing, by close of business on 3 June 2015. No advice of that kind was received, and no submissions that the termination of the Agreement would be contrary to the public interest have been received by the Fair Work Commission.

[8] On the basis of the material before me, I am satisfied that termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act). Further, in accordance with section 226(b) of the Act, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[9] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from today's date, 4 June 2015.

DEPUTY PRESIDENT

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