MISSION AUSTRALIA SERVICE DELIVERY ENTERPRISE AGREEMENT 2016-2019

Social, community, home care and disability services

Application for termination of the Mission Australia Service Delivery Enterprise Agreement 2016 - 2019 after its nominal expiry date

[1] On 2 June 2025, Mission Australia ('the Applicant') made an application pursuant to section 225 of the Fair Work Act 2009 (Cth) ('the Fair Work Act') to terminate the Mission Australia Service Delivery Enterprise Agreement 2016-2019 ('the Agreement')[1] after its nominal expiry date.

[2] Section 225 of the Fair Work Act provides, relevantly, that an employer covered by an enterprise agreement may apply for the Commission to terminate that agreement after its nominal expiry date. The Applicant is an employer covered by the Agreement. The Agreement has passed its nominal expiry date, which was 30 June 2019.[2] I am satisfied that the Applicant has standing to make the termination application.

[3] Section 226 of the Fair Work Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

[4] The material before the Commission includes the originating application and an accompanying declaration of Juvena Rowe declared 2 June 2025. It also includes a statutory declaration of Ben Williams declared 19 August 2025, and the annexures to that statutory declaration, which I will discuss below.

[5] The application relies on the first and third limbs of subsection 226(1) of the Fair Work Act, which are that the Agreement's continued operation would be unfair for the employees covered by it; and that its continued operation would pose a significant threat to the viability of a business carried on by the employer covered by the Agreement.

[6] I will first deal with subsection 226(3) of the Fair Work Act. The Agreement covers the applicant. The application and accompanying declaration indicated that the Agreement does not cover any employees of the applicant. However, correspondence since provided indicates that it may cover employees of the applicant who are not covered by the replacement agreement, the Mission Australia Service Delivery Enterprise Agreement 2024 ("the 2024 Agreement").

[7] The Agreement also covers the Australian Municipal, Administrative, Clerical and Services Union (ASU), the United Workers Union (UWU), the Independent Education Union of Australia (IEU), the Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF).

[8] On 1 August 2025, I issued Directions ('the Directions') requiring the Applicant to provide a copy of the originating application and the supporting declaration, along with a copy of the Directions, to all employees covered by the Agreement.

[9] The Directions required the Applicant to file in the Commission evidence of its compliance with the requirement to provide the various documents referred to above. As stated above, in response to this Direction, the Applicant filed a statutory declaration of Mr Williams declared 19 August 2025, confirming the documents had been sent to all employees, and annexing copies of the relevant communications.

[10] The Directions provided an opportunity for any employee or employee organisation covered by the Agreement to file material in response to the application regarding their views, their circumstances, and/or the likely effect that the termination of the Agreement would have on them. That material was initially due by 15 August 2025. This date was subsequently extended to 22 August 2025.

[11] Having regard to Mr Williams' statutory declaration of 19 August 2025, I am satisfied that all employees were on notice of the application to terminate, had a copy of the application and the supporting declaration, and had a copy of the Directions.

[12] Though the Applicant provided employees with these documents, no employee filed any materials in response to the Directions. I therefore consider it is open to me to proceed on the basis that the employees also do not oppose the application to terminate the Agreement.

[13] All of the employee organisations covered by the Agreement either confirmed in writing that they do not oppose the Agreement's termination, or refrained from taking up the opportunity to object.

[14] I now turn to subsection 226(1) of the Fair Work Act. The employer represented to the Commission, relevantly, that during the negotiations for the 2024 Agreement, the coverage of the instrument was changed, resulting in the removal of a group of employees, referred to as "the PEI team members." It said these employees (the PEI team members) negotiated their removal from the 2024 Agreement and were now covered by common law contracts underpinned by the Social, Community, Home Care and Disability Services Industry Award. It said the ASU had advised it, during bargaining, to seek to terminate the Agreement as the preserved entitlements for this group of employees (the PEI team members) refers to the 2016 Agreement entitlements in a preservation schedule attached to their common law contract. It said the application to terminate the 2016 Agreement was discussed and agreed upon during bargaining between Mission Australia and the ASU, representing the bulk of the employees, including the PEI team members. The applicant considered that this meant that there were now no employees covered by the Agreement.

[15] The ASU responded as follows:

We understand that there is, in fact, a category of employees at Mission Australia who are still covered by the Mission Australia Service Delivery Enterprise Agreement 2016-2019 ("the 2016 agreement") as they have been excluded from coverage of the Mission Australia Service Delivery Enterprise Agreement 2024 ("the 2024 agreement").

The employer expressed their intention for these employees to be covered by a common law contract. However, while they are still capable of being covered by the 2016 agreement, that agreement remains in effect. For this reason we sought agreement from the employer to terminate the 2016 agreement so that these employees would not be disadvantaged by what is in effect a zombie agreement.

We do not have knowledge of whether or not the employer has completed the steps under s220 of the Fair Work Act.

[16] There is no contest on the facts, only on the consequences as to whether the employees were still covered by the Agreement pending termination. Accordingly, I consider I can take these representations as to the facts into account.[3]

[17] I accept that if the Agreement is still in force, and there are employees covered by it that are not covered by the 2024 Agreement, then the employer is incorrect to say there are no remaining employees covered by the Agreement.

[18] Having regard to the Agreement, the 2024 Agreement, and the parties' representations above, it is open to me to conclude that the continuing operation of the Agreement would be unfair to employees, and I do so. It is not necessary to decide whether the alternative basis for the application identified within it is enlivened.

[19] I will now consider subsections 226(1A) and (5) of the Fair Work Act. Under subsection 226(1A), the Commission must terminate an enterprise agreement only if it is satisfied that it is appropriate in all the circumstances to do so. Subsection 226(5) provides that in deciding whether to terminate an enterprise agreement, the Commission may also have regard to any other relevant matter. No employer, employee, or employee organisation covered by the Agreement has drawn to my attention any relevant matters beyond those contained in the application, Ms Rowe's supporting declaration, and Mr Williams' statutory declaration and its annexures. I am not aware of any other relevant matters that would weigh against terminating the Agreement. I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.

[20] I am satisfied that each of the requirements of section 226 of the Fair Work Act have been met. I have decided to terminate the Agreement. Pursuant to section 227 of the Fair Work Act, the termination of the Agreement will take effect on and from 9 September 2025. An order[4] to this effect will be issued with this decision.

[1] AE423267; PR590034.

[3] R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228 at 243 per Barwick CJ; Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

[4] PR791534.

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