Young Mens Christian Association of Canberra Inc (A00020) T/A YMCA of Canberra Inc
[2020] FWCA 3758
•17 JULY 2020
| [2020] FWCA 3758 |
| 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
Young Mens Christian Association of Canberra Inc (A00020) T/A YMCA of Canberra Inc
(AG2020/1721 and AG2020/1722)
YMCA OF CANBERRA INC CERTIFIED AGREEMENT 2000 AND
YMCA COLLECTIVE AGREEMENT 2007
Children’s services | |
DEPUTY PRESIDENT KOVACIC | CANBERRA, 17 JULY 2020 |
Applications for termination of the YMCA of Canberra Inc Certified Agreement 2000 and the YMCA Collective Agreement 2007 – Agreements terminated.
[1] On 17 June 2020 the Young Mens Christian Association of Canberra Inc (A00020) T/A YMCA of Canberra Inc (the Applicant) made separate applications to terminate the YMCA of Canberra Inc Certified Agreement 2000 (the 2000 Agreement) 1 and the YMCA Collective Agreement 2007 (the 2007 Agreement)2 (the 2000 and 2007 Agreements will together be referred to as the Agreements) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).
[2] Statutory declarations from Mr Andrew O’Neil, the Applicant’s Finance Officer, and Mr Torrien Lau, the Applicant’s Chief Executive Officer, were provided in support of the applications to terminate the 2000 Agreement and the 2007 Agreement respectively.
[3] By way of background, the Applicant was unable to provide a copy of the 2000 Agreement while the 2007 Agreement does not specify its period of operation or a nominal expiry date.
The Statutory framework
[4] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.
[5] The relevant provisions of the Act relating to termination of an enterprise agreement 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.”
Consideration of the issues
[6] With regard to the requirements of s.225, the Applicant submits that based on an unsigned copy of the 2000 Agreement, the nominal expiry date of the Agreement was 2 February 2003 (the Applicant was unable to provided copy of the Agreement approved by the then Australian Industrial Relations Commission). The 2007 Agreement does not specify a nominal expiry date (the Agreement was lodged with the Workplace Authority). However, the 2007 Agreement would have replaced the 2000 Agreement, while the 2007 Agreement was in turn replaced by the YMCA Canberra Enterprise Agreement 2017 3 which commenced operation on 4 June 2018. Having regard to the legislative regime in place at the time each of the Agreements were made, I am satisfied that the Agreements would have passed their respective nominal expiry dates many years ago.
[7] I am also satisfied, based on the title of the 2000 Agreement, that the Applicant is entitled to make an application to the Commission for termination of that Agreement. As to the 2007 Agreement, the Agreement provides at clause 1.6 that it binds “[t]he YMCA of Canberra Inc. ABN 89 952 764 183” which is the ABN cited by the Applicant in its application. A search on the Australian Securities and Investments Commission website confirms that the ABN is that of the Applicant. 4 Accordingly, I am satisfied that the Applicant is able to make the applications.
[8] I turn now to consider each of the matters specified in s.226 of the Act.
s.226(a) – the FWC is satisfied that it is not contrary to the public interest to do so
[9] Mr O’Neil in his statutory declaration regarding the application to terminate the 2000 Agreement stated inter alia that the Agreement had been replaced by subsequent agreements and that no employees were covered by the Agreement. Mr O’Neil further declared that he believed that termination of the Agreement would not adversely affect any person or the public and that as such termination would not be contrary to the public interest.
[10] Mr Lau in his statutory declaration regarding the application to terminate the 2007 Agreement similarly declared that he believed that termination of the Agreement would not adversely affect any person or the public and that termination would not be contrary to the public interest.
[11] The Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd (Aurizon) 5 considered the issue of public interest in the context of s.226(a) and observed as follows:
“[129] Section 226(a) requires a consideration of whether termination of the agreements is not contrary to the public interest. It seems to us that a consideration of the public interest will involve something that is distinct from the interests of the persons and bodies covered by the agreements. This distinction seems to be reflected in the structure of s. 226. The question of how the public interest is to be assessed was considered by a Full Bench of the Australian Industrial Relations Commission in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000. The decision in Kellogg Brown concerned an application to terminate a certified agreement pursuant to s. 170MH of the WR Act. The Full Bench observed:
“The absence of any reference to the interests of the negotiating parties in s.170MH(3) is significant. It follows that the views of persons bound by the agreement may be relevant to the exercise of the discretion if they shed light upon the effect of termination on the public interest, but they should not be given any independent weight. To do so would be to import into the application of the section something which on its proper construction it does not include.
The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them.”” (Endnotes not included)
[12] Having regard to the decision in Aurizon, in particular the public interest as described by the Full Bench, there is nothing before the Commission which enlivens the public interest in this case, i.e. termination of the Agreements would not be contrary to the public interest.
s.226(b)(i) – the views of the employees, each employer, and each employee organisation (if any), covered by the agreement
[13] The Applicant’s support for termination of the Agreements is evidenced by its applications. As to the views of employees, as mentioned above, Mr O’Neil declared that no employees were covered by the 2000 Agreement while Mr Lau declared that he was the only employee still covered by the 2007 Agreement and that he would not be adversely affected by termination of the Agreement. Mr Lau further declared that at the time of his employment:
• clause 12 of his employment contract acknowledged that his terms and conditions of employment under the 2007 Agreement would remain unchanged were the Agreement to be terminated; and
• he understood that the Applicant intended to apply to the Commission to terminate the 2007 Agreement and that subsequently no future enterprise agreement would apply to his employment.
[14] I note that the YMCA Canberra Enterprise Agreement 2019 6 (the 2019 Agreement) now covers the Applicant and its employees (other than the CEO and employees above the high income threshold). The 2019 Agreement has a nominal expiry date of 30 June 2022.
[15] In the absence of a copy of the 2000 Agreement it is not clear whether any employee organisation is covered by that Agreement. However, it is clear from clause 1.6 of the 2007 Agreement that no employee organisation is covered by that Agreement (or “bound” by that Agreement using the terminology used in the clause).
s.226(b)(ii) – the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them
[16] In circumstances where the 2019 Agreement now covers the Applicant and its employees (subject to the previously mentioned exclusions), termination of the Agreements will not have any effect on the Applicant, employees or employee organisations (allowing for the possibility that an employee organisation(s) is a party/covered by the 2000 Agreement). As previously noted, Mr Lau declared that he was the only employee still covered by the 2007 Agreement and that he would not be adversely affected by termination of the Agreement.
Conclusion
[17] For all the above reasons, I am satisfied that termination of the Agreements would not be contrary to the public interest and consider that it is appropriate to terminate the Agreements taking into account all the circumstances in this case. Accordingly, as required by s.226 of the Act, the Commission must terminate the Agreements. The termination will come into effect from the date of this decision. An Order to that effect will be issued in conjunction with this Decision.
1 AG805096
2 AC313324
3 AE428539
4 (2015) 249 IR 55
6 AE508092
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