Youth Affairs Council of South Australia

[2013] FWCA 3470

[2013] FWCA 3470

FAIR WORK COMMISSION

DECISION

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

Youth Affairs Council of South Australia
(AG2013/6276)

YOUTH AFFAIRS COUNCIL OF SOUTH AUSTRALIA INCORPORATED ENTERPRISE AGREEMENT 2008

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 31 MAY 2013

Application for termination of the Youth Affairs Council of South Australia Incorporated Enterprise Agreement 2008.

[1] This decision concerns an application by Youth Affairs Council of South Australia pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s 225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the Youth Affairs Council of South Australia Incorporated Enterprise Agreement 2008. 1

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiry date of 30 June 2011.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by the FWC

(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] This matter was the subject of a hearing on 30 May 2013 at which time I heard from Ms Bainbridge, Executive Director, and Ms Monahan, Business Consultant, on behalf of the applicant employer.

[6] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that the employees who are presently subject to the Agreement support its termination. 3 The Australian Municipal, Administrative, Clerical and Services Union, as a party bound by the Agreement was advised of the hearing and has not opposed the application.

[7] The employment of those employees will fall back to the coverage and application of the relevant modern award. That award is a more contemporary instrument than the present Agreement and will in this case provide appropriate terms and conditions for the enterprise and employees concerned.

[8] There are some pay levels where the adjusted Agreement base rates are higher than the present modern award rate. The employer has provided an undertaking to both its staff and the Commission that no employee’s rate of pay will be reduced as a result of the termination of the Agreement. I have accepted that undertaking and dealt with this application on that basis.

[9] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[10] The termination will take effect on and from 31 May 2013.

COMMISSIONER

 1   The agreement was originally approved pursuant to the Industrial and Employee Relations Act 1994 (SA).

 2 Item 2(5)(c)(iii) of Schedule 3.

 3   A notice of listing was also provided to all employees by the FWC and this invited employees with concerns to contact the Commission. No concerns have been raised.

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