Workers Educational Association of South Australia Inc T/A WEA Adult Learning

[2021] FWCA 5154

[2021] FWCA 5154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Workers Educational Association of South Australia Inc T/A WEA Adult Learning
(AG2021/6653)

WORKERS’ EDUCATIONAL ASSOCIATION OF SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2011

Educational services
COMMISSIONER PLATT	ADELAIDE, 19 AUGUST 2021

Application for termination of the Workers’ Educational Association of South Australia Enterprise Agreement 2011.

[1] On 11 August 2021, Workers Educational Association of South Australia Inc T/A WEA Adult Learning (WEA) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act)to terminate the Workers’ Educational Association of South Australia Enterprise Agreement 2011 (the Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2014. The Agreement has now passed its nominal expiry date.

[3] Section 226 of the Act states:

“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.”

[4] On 12 August 2021, my Associate sent a Notice of Listing to the Applicant for a conference to be held on 19 August 2021. The Applicant was directed to make this Notice of Listing available to all employees covered by the agreement. On the Notice of Listing, it was noted that the employees were able to provide their views in respect of the Application by emailing my Chambers, or alternatively, by attending the conference on 19 August 2021.

[5] On 12 August 2021, I received written confirmation from the Applicant’s representative that all relevant employees were sent the Notice of Listing by email.

[6] I have received no objections from any of the relevant employees.

[7] I have considered the information provided in the application and by WEA pursuant to section 225 of the Act. This includes the Statutory Declaration by Ms Lesley Venning, Chief Executive Officer for the Applicant, dated 11 August 2021. Ms Venning makes the following submissions in relation to the approval of termination:

•  The rates in the Education Services (Post-Secondary Education) Award 2020 (the Award) have increased since the Agreement was originally approved, and the current award is more beneficial to employees who are currently covered by the Agreement.

•  The relevant employees have been consulted and arrangements have been made to ensure that each employees’ existing benefits from the Agreement will be ‘grandfathered’ into their new contract of employment.

[8] Upon my further review of the Agreement, I noted certain conditions in the Agreement that appeared to be more beneficial to employees than those contained in the Award. Accordingly, I sought further information from the Applicant as to how they would preserve those conditions upon termination. The Applicant provided the following undertakings:

•  The severance pay for current employees employed prior to 29 September 2011 will continue to apply (as per Clause 17.4 of the Agreement).

•  All current employees will be provided with Accident Pay coverage (as per Clause 19 of the Agreement).

•  The ordinary hours of work for full-time employees employed prior to 29 September 2011 will be an average of 35 hours per week.

•  The contracts of employment for the relevant employees will contain terms giving effect to these undertakings.

[9] On the basis of these undertakings, I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

[10] The undertakings outlined above shall remain in force unless agreement is reached to vary those terms and/or a new enterprise agreement which modifies those terms comes into effect.

[11] A copy of this decision must be served by the Applicant upon all employees previously covered by the Agreement.

[12] In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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