Young Mens Christian Association of Canberra Inc (A00020) T/A YMCA of Canberra Inc

[2020] FWCA 3761

[2020] FWCA 3761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Young Mens Christian Association of Canberra Inc (A00020) T/A YMCA of Canberra Inc
(AG2020/1723)

YMCA CANBERRA ENTERPRISE AGREEMENT 2017

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 17 JULY 2020

Application for termination of the YMCA Canberra Enterprise Agreement 2017 – Agreement terminated.

[1] On 17 June 2020 the Young Mens Christian Association of Canberra Inc (A00020) T/A YMCA of Canberra Inc (the Applicant) filed an application made under s.225 of the Fair Work Act 2009 (Cth) (the Act) seeking to terminate the YMCA Canberra Enterprise Agreement 2017 (the 2017 Agreement) 1. The Agreement passed its nominal expiry date on 30 June 2019 and on 27 May 2020 was replaced by the YMCA Canberra Enterprise Agreement 2019 (the 2019 Agreement) 2.

[2] Filed with the application was a Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date made by Mr Andrew O’Neil, the Applicant’s Finance Manager.

[3] On 6 July 2020 the Fair Work Commission (the Commission) wrote to the Applicant and its legal representative in the following terms:

“On 17 June 2020 the Young Mens Christian Association of Canberra Inc trading as the YMCA of Canberra Inc (the Applicant) made an application to the Fair Work Commission pursuant to s.225 of the Fair Work Act 2009 to terminate the YMCA Canberra Enterprise Agreement 2017 (the Agreement). A copy of the application and supporting documentation is included with this letter.

In deciding whether to terminate the Agreement, the Commission is required to consider the views of the employee organisation and any employees covered by the Agreement.

DIRECTIONS

The following directions are issued:

1. This Letter and Directions are to be made available to any employee of the Applicant who is covered by the Agreement (if applicable) by no later than close of business on Thursday, 9 July 2020.

2. Any party intending to provide their views on the order sought may do so by providing a written statement to chambers ([email protected]) by no later than close of business on Friday, 10 July 2020.

3. If any party wishes to be heard, they must advise chambers by email, by no later than close of business on Friday, 10 July 2020.” (Emphasis as per original)

[4] A copy of that correspondence was also forwarded to the United Workers Union (UWU) which now incorporates the former United Voice which was covered by the 2017 Agreement. By way of background, the UWU is covered by the 2019 Agreement.

[5] The UWU emailed the Commission on 9 July 2020 advising that it wished to be heard in respect of the application. However, the UWU subsequently emailed the Commission on 14 July 2020 to advise that in the light of discussions it had had with Mr O’Neil it was satisfied that the application was procedural in nature and that it no longer wished to be heard regarding the matter. Beyond that, no employee provided any views regarding the application as per the above Directions.

[6] Against that background, the application has been determined on the papers.

The Statutory framework

[7] Subdivision D of Part 2-4 of the Act deals with the termination of agreements after their nominal expiry date. Subdivision D provides as follows:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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

[8] As noted above, the 2017 Agreement passed its nominal expiry date on 30 June 2018. Further, it is clear from the 2017 Agreement that the Applicant is the employer covered by the Agreement (see clause 2.1 and Appendix 5 of the 2017 Agreement). Accordingly, the Applicant can make an application under s.225 of the Act for termination of the 2017 Agreement.

[9] I turn now to s.226 of the Act which sets out when the Commission must approve the termination of an enterprise agreement after its nominal expiry date. In doing so, I note that that the Commission must be satisfied that it is not contrary to the public interest to do so and consider that it is appropriate to terminate the Agreement taking into account all the circumstances. I deal with each of the considerations in s.226 below.

(i) The Commission is satisfied that it is not contrary to the public interest to do so – s.226(a)

[10] The Full Bench in Aurizon considered the issue of public interest in the context of s.226(a) of the Act, making the following observations:

“[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."” (Citations not included, underlining added)

[11] Mr O’Neil in his Form F24C declaration stated that no employees were covered by the 2017 Agreement as it had been replaced by the 2019 Agreement. Mr O’Neil further stated that he believed that termination of the 2017 Agreement would not adversely affect any person or the public in any way, adding that he further believed it would not be contrary to the public interest to terminate the 2017 Agreement.

[12] Termination of the 2017 Agreement will not impact on the public interest as described by the Full Bench in Aurizon, particularly as it has been replaced by the 2019 Agreement. As such, I am satisfied that it is not contrary to the public interest to terminate the 2017 Agreement.

(ii) The views of the employees, each employer, and each employee organisation covered by the agreement – s.226(b)(i)

[13] It is clear that the Applicant supports termination of the Agreement.

[14] No employees have expressed any concerns regarding the application to terminate the 2017 Agreement. This is not surprising in circumstances where there are no employees covered by the 2017 Agreement given its replacement by the 2019 Agreement.

[15] The UWU in its email of 14 July 2020 described the application as procedural in nature (see paragraph [5] above).

(iii) The circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them – s.226(b)(ii)

[16] In circumstances where the 2017 Agreement has been replaced by the 2019 Agreement, termination of the 2017 Agreement will have no effect whatsoever on the Applicant, its employees or the UWU.

(iv) The Commission considers that it is appropriate to terminate the agreement taking into account all the circumstances – s.226(b)

[17] Section 226(b) of the Act requires the Commission to take into account all the circumstances, including the views of the employees, each employer, and each employee organisation (if any), covered by the agreement and the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[18] Having taken into account all the circumstances in this matter and noting in particular that the 2017 Agreement has been replaced by the 2019 Agreement, that no party objects to the application and that termination of the 2017 Agreement will have no effect on the Applicant, its employees or the UWU, I am satisfied that it would be appropriate to approve the termination of the 2017 Agreement in the circumstances.

Conclusion

[19] For all the above reasons and having taken into account all the circumstances in this matter, I am satisfied that it is not the contrary to the public interest and that it is appropriate to terminate the 2017 Agreement. Termination of the 2017 Agreement will take effect from the date of this decision. An Order to that effect will be issued in conjunction with this decision.

 1   AE428539

 2   AE508092

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