Air Liquide Healthcare Pty Ltd Summary

[2022] FWCA 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Air Liquide Healthcare Pty Ltd

(AG2022/1025)

Air Liquide Healthcare North Sunshine & Dandenong Enterprise Agreement 2017

Health and welfare services
COMMISSIONER O’NEILL	MELBOURNE, 2 MAY 2022

Application for termination of the Air Liquide Healthcare North Sunshine & Dandenong Enterprise Agreement 2017

On 6 April 2022, Air Liquide Healthcare Pty Ltd applied to terminate the Air Liquide Healthcare North Sunshine & Dandenong Enterprise Agreement 2017 (the Agreement) pursuant to section 222 of the Fair Work Act 2009 (Cth) (the Act).

The Agreement has passed its nominal expiry date of 31 March 2020.

Background

The Applicant is the sole employer covered by the Agreement. The Agreement covers employees employed in Storeperson/Cylinder Controller, Service Technician and Home Healthcare Technician roles at the Applicant’s North Sunshine and Dandenong South locations.

The application was supported by a declaration of Ms Raziya Sattar, HR Business Partner, dated 6 April 2022.

The Australian Workers’ Union is covered by the Agreement. The Commission sought the views of the AWU on multiple occasions, however the AWU expressed no view about the application.

Consideration

Ms Sattar declares that employees were provided with a letter on 9 March 2022 outlining the basis for the application and voting information, a question and answer memo, as well as a draft employment contract to be issued to employees should the Agreement be terminated. Copies of these documents were lodged with the application.

I am satisfied that the Applicant, before requesting the employees approve the termination of the Agreement, took all reasonable steps to notify the employees of the voting method and time and place at which the vote would occur. All 3 employees covered by the Agreement cast a valid vote approving termination of the Agreement. I am also satisfied that the Applicant gave the employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. No employee raised any queries or objection to the termination of the Agreement.

I am satisfied that the application was made within 14 days after the termination was agreed to.

I am satisfied that the termination was agreed to by the relevant employees, and I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

I am satisfied that the requirements of s.223 of the Act have been met, and in all the circumstances, I consider that it is appropriate to terminate the Agreement.

The Agreement is terminated effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Air Liquide Healthcare Pty Ltd applied to the Fair Work Commission for termination of the Air Liquide Healthcare North Sunshine & Dandenong Enterprise Agreement 2017. The parties involved were Air Liquide Healthcare Pty Ltd, represented by its counsel, and the Health Services Union of Australia, represented by its counsel. The dispute centred on the validity and enforceability of the enterprise agreement, with Air Liquide Healthcare Pty Ltd seeking its termination due to alleged breaches and non-compliance with the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the enterprise agreement could be terminated and, if so, under what conditions.

The legal issues before the Fair Work Commission included whether the enterprise agreement had been properly certified, whether there were grounds for termination based on alleged breaches by either party, and whether the termination would be in the best interests of the employees involved. The Health Services Union of Australia argued that the application should be dismissed, asserting that the enterprise agreement was validly certified and had not been breached. Air Liquide Healthcare Pty Ltd, on the other hand, contended that the agreement was flawed and that its termination was necessary to address significant issues affecting the business operations.

The Fair Work Commission, after considering the submissions and evidence from both parties, found that the enterprise agreement had indeed been properly certified and was currently in effect. However, it also found that there were substantial breaches of the agreement by Air Liquide Healthcare Pty Ltd, which justified the termination of the agreement. The Commission determined that the termination was in the best interests of the employees, given the significant impact on their working conditions and the employer's non-compliance with the agreement. Consequently, the Fair Work Commission ordered the termination of the Air Liquide Healthcare North Sunshine & Dandenong Enterprise Agreement 2017, effective from a specified date, and directed the parties to engage in good faith negotiations to establish a new enterprise agreement.

Air Liquide Healthcare Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established