Applications by Joel Calderon, Denish Raja, Bineesh Kumar Muttupanthiyil Sivaraman, Daniel Harvey, Joy Eleanor Bellon, Jins Mathew, Stuti Ahuja, Vincent Depaul Orji, Boby Jossy James, Mariella Rosso, Modupe...

[2022] FWCA 1401

[2022] FWCA 1401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Applications by Joel Calderon, Denish Raja, Bineesh Kumar Muttupanthiyil Sivaraman, Daniel Harvey, Joy Eleanor Bellon, Jins Mathew, Stuti Ahuja, Vincent Depaul Orji, Boby Jossy James, Mariella Rosso, Modupe Abiodun, Jeanette Kuc, Allwin Soniya Aaron Ginarva Raj, Juma Gatkuoth Gatbel, Aracely Gladys Larrain, Khondaker Moin Uddin Ahmed, Arpit Patel, Paul Raj Chellaian, Patrick Muhoya, Jerry Johnson, Renata Suienne

(AG2022/790)

Healthscope Ltd (Community Programs) Workplace Agreement 2008

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 26 APRIL 2022

Applications for termination of the Healthscope Ltd (Community Programs) Workplace Agreement 2008

1. On 18 March 2022, a total of 22 employees (the Applicants) of Healthscope Operations Pty Ltd (Healthscope or the Respondent) filed applications pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Healthscope Ltd (Community Programs) Workplace Agreement 2008 (the Agreement). Whilst each of the employees filed an individual Form F24B Application and F24C Statutory Declaration, the applications were received by the Commission together in a single envelope and are substantially similar in content. As such, they have been dealt with together as a single matter.

1. The Agreement has a nominal expiry date of 1 September 2012. The Agreement has now passed its nominal expiry date.

1. Section 226 of the Act states:

“226      When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b)       the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i)the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii)the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

1. On 21 March 2022, my Associate sent the applications to the Respondent, and requested that the Respondent provide their views on the applications by close of business on 23 March 2022. Upon request from the Respondent, an extension of time was granted for the Respondent to respond to the application by 4.00pm on 20 April 2022. This extension was granted to allow the Respondent to compare the terms of the Agreement to the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) and seek advice from their payroll department as to the effect of any termination on their payroll systems.

1. On 19 April 2022, the Respondent indicated through their representative that it did not intend to oppose the applications, on the basis that the date of the effect of termination be such that it allowed the Respondent to make the necessary adjustments to its payroll system and issue new contracts of employment for each employee to mirror the new classification structures and conditions under the Award.

1. On 20 April 2022, my Associate emailed the Respondent requesting that they indicate the date of termination that they proposed was necessary to make the above adjustments.

1. On 26 April 2022, the Respondent indicated that the date they were seeking for the termination to come into effect was 25 July 2022. The Respondent gave the following reasons for this date:

·   The Respondent’s pay period is a fortnightly period, commencing Monday and ending Sunday (the following week).

·   The final pay period under the terms of the Agreement would be from Monday, 11 July 2022 to Sunday, 24 July 2022.

·   The termination would be effective on 25 July 2022 and the Award would apply from the start of a pay period, being Monday, 25 July 2022.

·   The Respondent’s internal payroll team had indicated that this 12-week period was the minimum time required to reconfigure and test the Respondent’s payroll rules to apply the Award to the employees currently covered by the Agreement.

·   Further, this time period would permit sufficient time for:

·  translation of each employee's classification under the Agreement to the applicable classification under the Award;

·  creation, issue and execution of new employment contracts for each employee; and

·  consultation with employees in anticipation of the Award applying to employees.

1. I have considered the information provided in the applications pursuant to section 225 of the Act. This includes the Statutory Declarations lodged by each of the Applicants. As stated above, the Statutory Declarations of each of the Applicants take a substantially similar form. In summary, the Applicants’ position is that the Agreement passed its nominal expiry date almost ten years ago, and the rates payable under the Agreement have been surpassed by the minimum rates required by the Award.

1. I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

1. I have considered the Respondent’s submissions in relation to the proposed effective date of termination. Given the adjustments that must be made in relation to the Respondent’s payroll system and employment contracts, I do not consider that three months is an excessive amount of time to delay the effect of termination. In addition, I note that this period gives the parties the opportunity to begin bargaining for a new agreement if they choose to do so. None of the Applicants or other employees covered by the Agreement have expressed any reservation in relation to the proposed effective date of termination. In accordance with section 227 of the Act, the termination will come into effect on 25 July 2022.

COMMISSIONER

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<AC317292  PR740643>