Social, community, home care and disability services

Application for termination of the Sussex Street Community Law Services Inc. Enterprise Agreement 2011 - termination not contrary to public interest - no employees covered by enterprise agreement - no detrimental impact or shift in bargaining power if enterprise agreement terminated - no other relevant matter warrants consideration - enterprise agreement terminated - Order issued.

[1] Sussex Street Community Law Service Inc has applied under s 225 of the Fair Work Act 2009 (Cth) to terminate the Sussex Street Community Law Services Inc. Enterprise Agreement 2011 after its nominal expiry date.

[2] The Agreement is a single-enterprise agreement, and its nominal expiry date was Sunday 27 December 2015. The Australian Municipal, Administrative, Clerical and Services Union is a party to the Agreement.

[3] Sussex Street asks the Commission to terminate the Agreement on the basis that there are no employees covered by the Agreement. In support of this application, Sussex Street filed a statutory declaration from their Chair, Mr Conrad Liveris. Mr Liveris' evidence is that Sussex Street is not a national system employer and is covered by the Western Australian state industrial relations system. Further, that Sussex Street has consulted with its employees generally about the industrial laws that apply to their employment.

[4] The ASU does not object to the application or Mr Liveris' evidence. On that basis, I find it appropriate to determine the matter on the papers.

[5] Sections 225, 226 and 227 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:

1. 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;

(c) an employee organisation covered by the agreement.

226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[6] I am satisfied that the termination of the Agreement is not contrary to the public interest.

[7] I consider that in the circumstances it is appropriate to terminate the Agreement. I have considered the views of the employer and the ASU. I accept Mr Liveris' evidence in his statutory declaration that there are no employees covered by the Agreement.

[8] There is no evidence before me suggesting that there is bargaining for a new enterprise agreement. The termination of the Agreement would not have any detrimental impact or result in a shift in bargaining power in relation to enterprise bargaining. Further, there does not appear to be any other relevant matter that warrants consideration.

[9] Accordingly, the Agreement is terminated.

[10] Pursuant to s 227 of the Act, the termination is to take effect on and from the date of this Decision. An Order[1] to this effect is issued concurrently with this Decision.

[1] PR790336.

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