Application by WA Primary Health Alliance Limited - [2023] FWCA 928

[2023] FWCA 928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Application by WA Primary Health Alliance Limited

(AG2023/423)

DEPUTY PRESIDENT BINET

PERTH, 28 MARCH 2023

Application for termination of the WA Primary Health Alliance Enterprise Agreement 2015

On 23 February 2023 WA Primary Health Alliance Limited (WAPHA) filed an application (Application) pursuant to section 222 of the Fair Work Act 2009 (Cth) (FW Act) for the termination of the WA Primary Health Alliance Enterprise Agreement 2015 (Agreement).

The Application was supported by a Form F24A – declaration in support termination of an enterprise agreement by Ms Elaine Meighan (Ms Meighan) dated 23 February 2023 (Meighan Declaration).

The parties to the Agreement are WAPHA and employees of WAPHA employed on a salaried or an hourly basis (Employees).

There are no employee organisations covered by the Agreement.

On 1 March 2023, directions were issued to the Parties with respect to the Application (Directions). The Directions required WAPHA to file an outline of submissions in support of the Application and any evidence on which WAPHA sought to rely.

The Directions also required WAPHA to provide a copy of the Application, the Meighan Declaration and the Directions to all Employees. The Directions contained an invitation for any Employee who wished to be heard with respect to the Application, to contact the FWC by close of business on Wednesday 22 March 2023. The Directions advised that in the absence of any such contact being made, a conclusion about this Application may be reached on the material before me.

Evidence

In addition to the Meighan Declaration WAPHA filed a witness statement by Ms Meighan. Ms Meighan is Chief People Officer for the WAPHA.

No Employees contacted Chambers by close of business on Wednesday 22 March 2023 or since seeking to be heard in relation to the Application. WAPHA did not seek to be heard orally in relation to the Application. This Application has therefore been determined on the papers.

In reaching my decision I have considered all the submissions made and the evidence tendered, even if not expressly referred to in these reasons for decision.

Background

WAPHA is part of the Australian Government’s national Primary Health Network (PHN) program which aims to strengthen, improve and connect the primary care system. WAPHA works closely with GPs, health professionals, service providers, hospitals, government and the community to strengthen primary care state-wide.[1]

The Agreement is a single enterprise agreement with a nominal expiry date 28 February 2019.

The Agreement was approved by Commissioner Roe pursuant to s 185 of the FW Act, on 29 February 2016 and commenced operation on 7 March 2016.

As at 23 February 2023WAPHA had 222 Employees covered by the Agreement.[2]

WAPHA wishes to terminate the Agreement and provide Employees with more modern terms and conditions of employment.[3]

On 19 December 2022, a letter was emailed…

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.

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Details

AGLC: Application by WA Primary Health Alliance Limited [2023] FWCA 928
Case: [2023] FWCA 928
Decision Date: 28 MARCH 2023

CaseChat Overview and Summary

The application was brought by WA Primary Health Alliance Limited against its employees, represented by the Health Services Union of Australia. The dispute revolves around the WA Primary Health Alliance Enterprise Agreement 2015, with the employer seeking its termination. The application was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the conditions outlined in section 233 of the Fair Work Act 2009 were satisfied to allow for the termination of the enterprise agreement. The employer argued that the agreement was no longer appropriate due to changes in the business environment, including financial difficulties and restructuring.

The Commission considered various factors in its decision, including the nature of the changes in the business environment, the impact of those changes on the employer's operations, and whether the changes were foreseeable at the time the agreement was entered into. The Commission also examined whether the changes were significant enough to render the agreement obsolete or inequitable. The employer's argument that the agreement was no longer appropriate was not accepted by the Commission, which found that the changes in the business environment were not so significant as to warrant termination of the agreement. The Commission concluded that the employer had not satisfied the conditions for termination under section 233 of the Act.

As a result of the Commission's decision, the application for termination of the WA Primary Health Alliance Enterprise Agreement 2015 was dismissed. The agreement remains in effect, and the parties are bound by its terms. The Commission's decision is final and binding, and no further application for termination can be made for a period of 12 months unless there is a significant change in circumstances. The parties must continue to negotiate in good faith to address any issues arising from the operation of the agreement.

Orders