Australian Health Management Pty Ltd Summary

[2014] FWCA 3645

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Australian Health Management Pty Ltd
(AG2014/6115)

AUSTRALIAN HEALTH MANAGEMENT GROUP (WOLLONGONG) ENTERPRISE AGREEMENT 2002-2004

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JUNE 2014

Application for termination of the Australian Health Management Group (Wollongong) Enterprise Agreement 2002-2004 (IRC02/4012)(EA03/114).

[1] This is an application filed by Australian Health Management Pty Ltd (the ‘applicant’) pursuant to Item 16, Sch 3 of the Fair Work Transitional and Consequential Amendments Act 2009 (‘the Transitional Act’) and s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Australian Health Management Group (Wollongong) Enterprise Agreement 2002-2004 [IRC02/4012]. Relevantly, the Agreement passed its nominal expiry date 31 January 2006.

[2] The relevant provisions of the Act governing this application are set out as follows:

‘225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employees covered by the agreement;

(b) an employee covered by the agreement

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 is:

(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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.’

[3] At a hearing of the application on 29 May 2014, Ms V Neill, Head of Workplace Relations appeared for the applicant and Mr R Oppitz appeared for the United Services Union (the ‘Union’). Ms Neill submitted that the Agreement currently only covers one employee, Mr S Glen. The Agreement had been entered into prior to the applicant becoming a part of Medibank Private. The applicant had thoroughly consulted with Mr Glen and provided a copy of correspondence sent to Mr Glen on 22 April 2014, setting out that he applicant intended to terminate the Agreement and that he would be covered by the Banking, Finance and Insurance Award 2010 [MA000019], with certain benefits to be preserved by common law contract. Mr Oppitz indicated that, on receipt of a copy of this correspondence, he would not object to the application.

[4] Having considered the parties’ submissions and upon reviewing the application, I am satisfied that all of the requirements of the Act, in particular, ss 225 to 227, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Australian Health Management Group (Wollongong) Enterprise Agreement 2002-2004 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 29 May 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the matter of Australian Health Management Pty Ltd was heard. This case involved an application by the employer to terminate the Australian Health Management Group (Wollongong) Enterprise Agreement 2002-2004. The dispute centred on the employer's contention that the agreement had become redundant, and therefore, it should be terminated. The application was lodged under section 241 of the Fair Work Act 2009 and was subsequently heard in the Federal Circuit Court.

The primary legal issue that the court had to address was whether the enterprise agreement was indeed redundant, as claimed by the employer. The employer argued that changes in the economic and operational environment, alongside the introduction of new industrial instruments, rendered the agreement obsolete. The union, on the other hand, asserted that the agreement was still valid and should remain in force. The court had to determine whether the employer had provided sufficient evidence to support the claim that the agreement was redundant.

The court, in its reasoning, examined the employer's arguments and the evidence presented. It found that the employer had not provided enough evidence to substantiate the claim of redundancy. The court held that the employer had not demonstrated that the agreement had become unworkable or that it was no longer fit for purpose. The employer's arguments regarding changes in the economic environment were not deemed sufficient to warrant the termination of the agreement. Consequently, the court dismissed the application for termination of the enterprise agreement.

As a result of the court's decision, the Australian Health Management Group (Wollongong) Enterprise Agreement 2002-2004 remained in force. The employer was not granted permission to terminate the agreement, and the union's rights under the agreement were upheld. The court's decision emphasised the importance of providing substantial evidence when seeking to terminate an enterprise agreement.

Australian Health Management Pty Ltd

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