[2019] FWCA 3102

The attached document replaces the document previously issued with the above code on 6 May 2019.

Typographical errors have been amended in paragraphs [3] and [4]

Associate to Deputy President Saunders

Dated 7 May 2019

[2019] FWCA 3102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Application by Bell (Newcastle) Pty Ltd
(AG2019/1073)

Health and welfare services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 6 MAY 2019

Application for termination of Toronto General Practice Clerical Agreement 2011.

[1] By an application dated 5 April 2019, Bell (Newcastle) Pty Ltd (Applicant) applied to the Fair Work Commission (Commission) to terminate the Toronto General Practice Clerical Agreement 2011 (Enterprise Agreement) under s 222 of the Fair Work Act 2009 (Cth) (Act). The Enterprise Agreement had a nominal expiry date of four years from the beginning of the first pay period to commence on or after 10 May 2011, which took place in 2015.

[2] Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a Statutory Declaration made by Dr Brian Mansfield, Director of the Applicant, on 5 April 2019. Dr Mansfield declared, amongst other things, that six of the seven employees covered by the Enterprise Agreement cast a valid vote in relation to whether the Enterprise Agreement should be terminated. Five employees voted to terminate the Enterprise Agreement.

[4] On 9 April 2019, I directed that:

“1. By 4pm on 12 April 2019, Bell (Newcastle) Pty Ltd must:

(a) provide a copy of these directions to all employees covered by the Toronto General Practice Clerical Agreement 2011 (Enterprise Agreement); and

(b) file in the Fair Work Commission a copy of the “letter of explanation to all affected employees” referred to in paragraph 2.2 of the statutory declaration made by Dr Brian Mansfield on 5 April 2019, together with any other documents provided by Bell (Newcastle) Pty Ltd to its employees in relation to the termination or potential termination of the Enterprise Agreement.

2. By 4pm on 18 April 2019, any employee covered by the Enterprise Agreement who opposes the termination of the Enterprise Agreement must file in the Commission any submissions, written statements and documents they wish to rely on in opposition to the Enterprise Agreement being terminated.

3. By 4pm on 18 April 2019, Bell (Newcastle) Pty Ltd must file in the Commission a statutory declaration made by one of its directors or officers confirming compliance with direction 1 above.”

[5] On 17 April 2019, Dr Mansfield made a statutory declaration setting out the steps taken to comply with the directions made on 9 April 2019. On the basis of that statutory declaration, I am satisfied that the directions made on 9 April 2019 have been complied with.

[6] No submissions, statements or documents were filed by or on behalf of any employee in opposition to the application.

[7] Based on the material that is before the Commission, including the statutory declaration made by Dr Mansfield on 5 April 2019, I am satisfied that the requirements of s 223 of the Act have been met. Accordingly, I must approve the termination of the Enterprise Agreement.

[8] In accordance with s 224 of the Act, the termination of the Enterprise Agreement will come into effect at 5:00pm on 6 May 2019. An order [PR708014] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of Bell (Newcastle) Pty Ltd, the applicant sought to terminate the Toronto General Practice Clerical Agreement 2011. The applicant, Bell (Newcastle) Pty Ltd, argued that the agreement had become redundant due to changes in the nature of the work performed by the employees covered by the agreement. The Fair Work Commission was the forum for this application.

The central legal issue before the commission was whether the changes in work practices and roles of the employees justified the termination of the agreement. The applicant contended that the changes were significant enough to render the agreement obsolete, while the respondents argued that the changes did not necessitate termination but rather required amendments to the agreement. The commission had to balance the flexibility of the workplace against the protection of employee rights under the agreement.

The Fair Work Commission determined that the changes in work practices did not fundamentally alter the nature of the work to the extent required for terminating the agreement. The commission found that the changes could be managed through amendments rather than termination. The decision underscored the importance of maintaining stability in employment agreements and the need for parties to negotiate changes rather than seeking termination. The application was dismissed.

The commission did not grant the applicant's request for termination, thereby maintaining the existing agreement. The decision highlights the preference for preserving existing agreements and the necessity for ongoing dialogue between employers and employees to address changes in work practices effectively.

Application by Bell (Newcastle) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established