YMCA of Bundaberg Inc

[2020] FWCA 4612

[2020] FWCA 4612

FAIR WORK COMMISSION

DECISION

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

YMCA of Bundaberg Inc
(AG2020/1628)

YMCA OF BUNDABERG INC UNION COLLECTIVE AGREEMENT 2009

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 1 SEPTEMBER 2020

Application for termination of the YMCA Of Bundaberg INC Union Collective Agreement 2009.

[1] YMCA of Bundaberg Inc (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the YMCA Of Bundaberg INC Union Collective Agreement 2009 (the Agreement) after its nominal expiry date.

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 30 June 2012.

[3] The relevant provisions of the Act are as follows:

“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.”

[1] A statutory declaration of Mr Greg McMahon, Chief Executive Officer, declared on 10 June 2020 was filed in the Fair Work Commission with the application.

[1] On 7 August 2020, the Applicant wrote to the Commission requesting that termination of the Agreement does not take effect until 31 October 2020 on the basis the Applicant is updating its payroll system to suit the Modern Awards framework and doesn't expect to have this operational until end of October 2020.   

[1] The United Worker’s Union (UWU) was covered by the Agreement and on 26 August 2020, the UWU confirmed in writing it had no objection to the termination taking effect on 31 October 2020. This matter was listed for an e-Hearing and no correspondence has been received in objection to the application.

[2] On the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

[3] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the agreement shall operate from 31 October 2020.

COMMISSIONER

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