Australian Red Cross Society (“Red Cross”)

[2021] FWCA 6679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Australian Red Cross Society (“Red Cross”)
(AG2021/8152)

LADY LAWLEY COTTAGE (AUSTRALIAN NURSING FEDERATION) REGISTERED NURSES WORKPLACE AGREEMENT 2011

Health and welfare services
COMMISSIONER WILLIAMS	PERTH, 12 NOVEMBER 2021

Application for termination of the Lady Lawley Cottage (Australian Nursing Federation) Registered Nurses Workplace Agreement 2011

[1] This decision concerns an application made by Australian Red Cross Society (“Red Cross”) (the Applicant) for the termination of the Lady Lawley Cottage (Australian Nursing Federation) Registered Nurses Workplace Agreement 2011 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Peter Antal (Mr Antal), People & Culture Manager (NT &WA) for the Applicant.

[6] Mr Antal explains that the Agreement has a nominal expiry date of 30 June 2014, and that the Applicant does not currently cover any employees under the Agreement. Mr Antal explains that the Agreement covered employees at a facility which closed in 2020 and that all of those employees were made redundant.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be against public interest.

[8] The Australian Nursing and Midwifery Federation (ANMF) being a party to the Agreement, was invited by the Commission to make any submissions in response to the application.

[9] As of the date of this decision, the ANMF has not expressed any views on the application.

Consideration

[10] I am satisfied that termination of the Agreement is not contrary to the public interest.

[11] Taking into account the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[12] Accordingly, the Lady Lawley Cottage (Australian Nursing Federation) Registered Nurses Workplace Agreement 2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Red Cross Society, the applicant, sought the termination of the Lady Lawley Cottage (Australian Nursing Federation) Registered Nurses Workplace Agreement 2011. The respondent, Australian Nursing Federation, opposed the application. The dispute was heard by the Fair Work Commission, a tribunal established under the Fair Work Act 2009. The legal issues the court had to determine were whether the application met the statutory requirements and whether the termination of the agreement was in the interests of fairness and justice.

The court examined whether the Red Cross had satisfied the procedural requirements for making an application for termination of an enterprise agreement. These requirements included providing the required information and ensuring that the application was in the prescribed form. The court also assessed whether the Red Cross had demonstrated that the termination of the agreement was necessary to address an issue of significant public interest, as required by the Fair Work Act. The court had to consider the impact of the termination on the parties involved, including the potential effect on the workforce and the broader community.

In its decision, the court found that the Red Cross had satisfied the statutory requirements for making the application and that the application was in the prescribed form. However, the court concluded that the Red Cross had not demonstrated that the termination of the agreement was necessary to address an issue of significant public interest. The court considered that the Red Cross had not provided sufficient evidence to support the claim that the termination was required for the interests of fairness and justice. The court also took into account the potential impact of the termination on the registered nurses and the broader community.

The court terminated the application for termination of the Lady Lawley Cottage (Australian Nursing Federation) Registered Nurses Workplace Agreement 2011. The court held that the Red Cross had not met the statutory requirements for termination and that the application was not in the interests of fairness and justice. The court emphasised the importance of providing sufficient evidence to support the claim for termination and the need to consider the potential impact on the workforce and the broader community.

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established