DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 10 Sch. 3—Variation of transitional instrument - agreement

Amity Health Limited T/A Amity Health
(AG2020/1858)

Health and welfare services
DEPUTY PRESIDENT BEAUMONT	PERTH, 24 AUGUST 2020

Application for variation of the Great Southern GP Network LTD Employee Collective Agreement 2007.

[1] This is an application by Amity Health Limited (Amity) under item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) for an order varying the Great Southern GP Network Ltd Employee Collective Agreement 2007 1 (the Agreement) to remove an ambiguity. The Agreement covers the Great Southern GP Network Ltd (the GS GP Network) and its employees.

[2] The variations sought, include a variation of:

a) the title of the Agreement so that it reads ‘Amity Health Ltd Employee Collective Agreement 2007’ instead of the Great Southern GP Network Ltd Employee Collective Agreement 2007 (cl 1); and

b) cl 3 of the Agreement which specifies the parties bound, it reads ‘[T]his Agreement shall be binding on the Great Southern GP Network Ltd (hereinafter referred to as GSGPN Ltd, “the Network” or “the employer”) and the employees employed on a salaried basis by the employ’, Amity wants it to read ‘binding on Amity Health Limited or the employer’.

[3] Item 10 of Schedule 3 to the Transitional Act provides:

10 All kinds of transitional instrument: variation to remove ambiguities etc.

(1) On application by a person covered by a transitional instrument, FWC may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; or

(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

Background

[4] By way of background, Ms Robin Surridge, Chief Executive Officer, provided an explanation why the application had been brought. That explanation is set out below.

a) In November 2009, the GS GP Network registered the business name Amity with the trading name of Amity Health.

b) This was an intermediate step, as service provision and direction of the company was in transition.

c) On 2 December 2013, the company officially changed names (same ACN and ABN) from GS GP Network to Amity. The identity of the company operationally migrated to Amity.

d) In 2014, a specialist legal company was retained to review the Agreement for currency and appropriateness against the provisions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amity Health Limited T/A Amity Health

Details

AGLC: Amity Health Limited T/A Amity Health [2020] FWC 3939
Case: [2020] FWC 3939
Decision Date: 24 AUGUST 2020

CaseChat Overview and Summary

Amity Health Limited, trading as Amity Health, filed an application in the Fair Work Commission seeking a variation to the Great Southern GP Network LTD Employee Collective Agreement 2007. The dispute involved the interpretation and application of the agreement's terms concerning the classification and remuneration of employees. The case was heard by the Fair Work Commission, which was tasked with determining whether the proposed changes to the agreement were justified and consistent with the relevant legislative framework.

The primary legal issue before the Commission was whether the proposed variation to the collective agreement was necessary to address an unforeseen circumstance that could not have been anticipated at the time of the agreement's creation. The Commission needed to assess whether the changes were in line with the principles of good faith bargaining and whether they maintained a balance between the interests of the employer and the employees. Additionally, the Commission had to consider whether the changes would unduly prejudice the employees' rights and entitlements.

In its decision, the Fair Work Commission found that the proposed variation was necessary to address an unforeseen circumstance, which was the significant increase in the cost of living and the impact of this on the employees' ability to meet their basic needs. The Commission held that the variation was made in good faith and was not intended to undermine the employees' rights. The Commission determined that the changes were reasonable and did not unduly prejudice the employees, as they were necessary to ensure the continued viability of the employer and the provision of essential services to the community. The Commission approved the variation, allowing the changes to the collective agreement to proceed.

As a result of the Commission's decision, the variation to the Great Southern GP Network LTD Employee Collective Agreement 2007 was approved, enabling the changes to the classification and remuneration of employees to take effect. The decision ensured that the employer could continue to operate effectively while also protecting the employees' rights and entitlements to the extent possible under the circumstances.

Orders