Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

STATEWIDE FINANCIAL MANAGEMENT SERVICES ENTERPRISE AGREEMENT 2006

Application to terminate a collective agreement-based transitional instrument - Interim decision.

[1] This decision concerns an application by Statewide Financial Management Services Pty Ltd ("SFMS") pursuant to Item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ("the Transitional Act") and Chapter 2, Part 2-4, Division 7 of the Fair Work Act 2009 ("the FW Act").

[2] The agreement is a collective agreement based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 30 June 2009. The agreement, at the time of application, applied to sixteen employees.

[3] The tribunal has considered this matter to date on the papers provided by the applicant's representative, Mr Ey. It is noted the employees are managerial employees and no representations by or for employees have been provided.

[4] Mr O' Flaherty, Chief Executive of SFMS has provided a statutory declaration to the effect of the following:

• The agreement in question was approved as a collective agreement between SFMS and all its employees in 2006 ("the 2006 agreement)" under the Workplace Relations Act 1996. No organisation of employees was bound to the agreement which had a nominal expiry date of 30 June 2009.

• SFMS made a new agreement with a majority of its employees which was approved by Fair Work Australia on the 27 August 2010. This new agreement covers all employees save for the Chief Executive, Managing Director, Head of Investments, General Managers and any manager reporting to them.

• Consequently some of the employees remain covered by the former agreement as they are not covered by the new agreement. There are 16 of these employees. SFMS wishes to formally terminate the 2006 agreement and has approached the employees in question and consulted as to the application to terminate the agreement.

• A secret ballot of affected employees has been held in an appropriate fashion and a valid majority as per s.221 of the FW Act has approved the application to terminate the agreement.

[5] The tribunal has considered the available information in this matter and has concluded the following. The application for termination of a collective agreement-based transitional instrument which has passed its nominal expiry date is catered for by an application under Chapter 2, Part 2 -4, Division 7, Subdivision D of the FW Act at ss.225 and 226 and Item 16 of Schedule 3 of the Transitional Act.

[6] Accordingly the criteria to be utilised by this tribunal is articulated within s.226 of the FW Act which states:

"226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[7] Accordingly the tribunal is of the view that the above approach shall be applied to this matter. To expedite such an approach the tribunal shall allow the applicant to amend this application to that of an application under ss.225 and 226. They simply need to confirm such an amendment.

[8] The tribunal accepts the documentary evidence provided by the applicant as to the views of the employer, the nature of consultation and method of voting on the agreement termination by employees as appropriate in these circumstances.

[9] However the tribunal can set down a hearing time to consider the requirements of the matters in s.226(b)(i) and (ii) above or in the alternative the applicant can arrange suitable statutory declarations on behalf of the affected employees such that the requirements of the Act can be satisfied in regard to appropriate considerations by FWA.

[10] The applicant is at liberty to approach the tribunal to clarify further programming as required.

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