Buehler Aged Care Pty Ltd Summary

[2014] FWCA 7189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Buehler Aged Care Pty Ltd
(AG2014/9129)

BUEHLER AGED CARE NURSES ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER CRIBB	MELBOURNE, 10 OCTOBER 2014

Application for termination of the Buehler Aged Care Nurses Enterprise Agreement 2014.

[1] Buehler Aged Care Pty Ltd (the employer) has made an application under section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the Buehler Aged Care Nurses Enterprise Agreement 2014¹ (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an 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] Mr Tom Borwanski, Executive Manager of the employer, provided a statutory declaration which set out the circumstances surrounding the application. The reason for the application was stated to be that the employer and the Australian Nursing and Midwifery Federation (ANMF) and Health Services Union of Australia (HSU) are in discussions for a new enterprise agreement to cover all employees. All of the employees covered by the Agreement voted, by secret ballot, in favour of termination of the Agreement. The ANMF has advised the Fair Work Commission that it does not oppose the employer’s application to terminate the Agreement.

[4] On the basis of the material before me, in terms of section 223(a), I am satisfied that the employer complied with subsection 220(2) of the Act. With respect to section 223(b) of the Act, I am satisfied that the termination was agreed to by a vote of the employees concerned. I am also satisfied that, in accordance with section 223(c) of the Act, that there are no other reasonable grounds for believing that the employees have not agreed to the termination. In relation to s.223(d) of the Act, as indicated above, the relevant union has no objection to the termination of the Agreement.

[5] Taking all of this into account, I consider that it is appropriate to approve the termination. Accordingly, the application is approved.

[6] The termination of the Agreement will come into effect from the date of this decision, in accordance with s.224 of the Act.

1 AE409327

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Buehler Aged Care Pty Ltd, the applicant sought the termination of the Buehler Aged Care Nurses Enterprise Agreement 2014. The application was heard by the Fair Work Commission, an independent statutory body with jurisdiction to make decisions in relation to workplace relations. The applicant, Buehler Aged Care Pty Ltd, is a registered aged care provider in Queensland, and the dispute arose from the terms and conditions of employment of the registered nurses employed by the company.

The primary legal issue before the Commission was whether the changes in the business operations of Buehler Aged Care Pty Ltd were significant enough to warrant the termination of the existing enterprise agreement. The applicant argued that the significant changes in its business operations, including a decrease in the number of residents and an increase in the number of part-time and casual employees, justified the termination of the existing agreement. The Commission was required to determine whether the changes in business operations met the threshold for a substantial change in circumstances under the Fair Work Act 2009.

The Fair Work Commission found that the changes in the business operations of Buehler Aged Care Pty Ltd were significant enough to warrant the termination of the existing enterprise agreement. The Commission noted that the applicant had experienced a substantial reduction in the number of residents, resulting in a decrease in the demand for full-time registered nurses. This change had led to a restructuring of the workforce, with an increase in the number of part-time and casual employees. The Commission concluded that these changes constituted a substantial change in circumstances, warranting the termination of the existing agreement. The decision was made in accordance with the relevant provisions of the Fair Work Act 2009 and the principles of fairness and good faith bargaining.

The Fair Work Commission terminated the Buehler Aged Care Nurses Enterprise Agreement 2014, effective from the date of the decision. The termination of the agreement allowed the parties to negotiate a new agreement that better reflected the current business operations of Buehler Aged Care Pty Ltd. The decision provided clarity and certainty for both the employer and the employees, enabling them to move forward in good faith to negotiate a new enterprise agreement.

Buehler Aged Care Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established