Cura Day Hospitals Group Pty Ltd T/A Dee Why Endoscopy Unit
[2022] FWCA 23
•6 JANUARY 2022
| [2022] FWCA 23 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.222—Enterprise agreement
Cura Day Hospitals Group Pty Ltd T/A Dee Why Endoscopy Unit
(AG2021/9025)
Dee Why Endoscopy Unit Nursing Employees Enterprise Agreement 2012-2015
| Health and welfare services | |
| Commissioner Matheson | SYDNEY, 6 JANUARY 2022 |
Application for termination of the Dee Why Endoscopy Unit Nursing Employees Enterprise Agreement 2012-2015.
On 16 December 2021, Cura Day Hospitals Group Pty T/A Dee Why Endoscopy Unit (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Dee Why Endoscopy Unit Nursing Employees Enterprise Agreement 2012-2015 (Agreement).
The Agreement is a single enterprise agreement. It was approved by Commissioner Jones on 29 May 2012.[1]
The nominal expiry date of the Agreement is 4 June 2015.
Legislation
The relevant provisions of the Act are as follows:
“220 Employers may request employees to approve a proposed termination of an enterprise agreement
(1)An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.
(2)Before making the request, the employer must:
(a) take all reasonable steps to notify the employees of the following:
(i) the time and place at which the vote will occur;
(ii) the voting method that will be used; and
(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.
(3)Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
221 When termination of an enterprise agreement is agreed to
Single‑enterprise agreement
(1)If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1)If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2)The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3)The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
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.
224 When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”
Consideration – s.222 of the Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
The Applicant’s name is Cura Day Hospitals Group Pty Ltd and it has provided the ABN 49 125 245 409 in its Application. The name of the employer covered by the Agreement is stated in clause 1.2(a) of the Agreement as Cura Day Hospitals Group with the same ABN as the Applicant’s.
Having considered the materials before the Commission, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standing to make the Application.
Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?
Subrule 26(1) of the Fair Work Commission Rules 2013 (Rules) provides:
“An application under section 22 of the Act for approval of termination of an enterprise agreement or a collective-based transitional instrument must be accompanied by a declaration by the applicant or an officer or authorised employee of the applicant setting out the basis upon which the Commission can be satisfied that the requirements of section 223 of the Act have been met.”
A ‘Form F24A – declaration in support of termination of an enterprise agreement’ (Form F24A) has been filed with the Application.
I am satisfied that the Application is accompanied by the material required by the Rules and that the requirements of s.222(2) of the Act have been met.
Has the Application been made within the required timeframe per s.222(3)(a)?
S.222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.
It is declared in the Form F24A that the termination was agreed on 8 December 2021.
The Commission’s records show the Application was filed on 16 December 2021, within 14 days after the termination was agreed.
I am satisfied that the requirements of s.222(3) of the Act have been met.
Consideration – s.223 of the Act
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.
S.220(2)
S.223(a) of the Act requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.
Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?
It is declared in the Form F24A that on 30 November 2021 employees were provided with a document entitled “It’s Time to Vote: Important Information About the Upcoming Vote”. A copy of this document was provided to the Commission with the Application. The document sets out the time and place of the vote.
Having considered the materials before the Commission, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.
Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?
The steps taken to ensure the employees covered by the Agreement were given a reasonable opportunity to decide whether they wanted to approve the termination are declared in the Form F24A. By way of summary, these include the following:
· employees were invited to attend an on-site information session on 23 November 2021 during paid working time. A PowerPoint presentation was delivered by the Applicant’s representative. A copy of the PowerPoint presentation has been provided to the Commission. The PowerPoint presentation indicated that employees’ current base rates will be protected if the Agreement is terminated. Employees were able to ask questions during and at the end of the presentation and were told where and how to obtain and/or download copies of the Agreement and the Nurses Award 2020 (Award);
· at the conclusion of the information session, employees were provided with a document explaining the key differences between the Agreement and the Award, with the Award being the instrument that would apply to them if the Agreement was terminated. A copy of the comparison document has been provided to the Commission;
· on 25 November 2021, the Applicant prepared and distributed a question and answer document setting out the most frequently asked questions and the Applicant’s responses. A copy of the question and answer document has been provided to the Commission; and
· on 25 November 2021 the Applicant conducted a second on-site information session during paid working time to answer any further questions and to ensure employees understood their options.
It is also declared in the Form F24A that employees were able to contact both the CEO/Director of Nursing and the Applicant’s representative to ask further questions and obtain further information.
Having considered the materials before the Commission, I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the Act.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
S.223(b) of the Act requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.
S.222(1) provides that if employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
It is declared in the Form F24A that eight employees are covered by the agreement, eight employees cast a valid vote and eight employees voted to approve the termination of the Agreement.
Having considered the materials before the Commission, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.
Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
On 17 December 2021, the Commission issued directions. The directions required that:
1.By no later than 4:00pm on Monday, 20 December 2021, the Applicant email a copy of the directions to its employees covered by the Agreement and any relevant employee organisations (if any).
2.By no later than 4:00pm on Wednesday, 22 December 2021, a director or officer of the Applicant file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with the directions.
3.By no later than 4:00pm on Friday, 31 December 2021, any employee or relevant employee organisations (if any) which oppose the termination of the Agreement file in the Commission any submissions, written statements and other documents they rely upon in opposition to the termination of the Agreement.
4.Any party seeking a hearing make such a request along with the filing of their materials per the above directions.
The directions also noted that in the absence of a request for a hearing, the matter would be determined on the papers.
The Applicant filed a statutory declaration confirming its compliance with the directions. No submissions in opposition were filed by any party and no request for a hearing was made.
As indicated in the PowerPoint presentation the Applicant delivered to employees, the Applicant has provided an undertaking to the Commission. That undertaking provides that in the event the Commission terminates the Agreement pursuant to s. 223 of the Act, the Applicant undertakes not to reduce the base rate of pay for any Nurse employed at the Dee Why Endoscopy Unit as at the date of the Agreement’s termination notwithstanding the lower base rates contained in the Award. The undertaking is stated to bind the Applicant if the Commission terminates the Agreement. I accept the Applicant’s commitment not to reduce base rates of pay as set out in the undertaking.
Having considered the material before the Commission, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.
Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)
There are no employee organisations covered by the Agreement.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
S.224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.
In accordance with s.224 of the Act, the termination will come into effect from 6 January 2022.
An Order to this effect PR737301 has been issued concurrently with this decision.
COMMISSIONER
[1] [[2012] FWAA 4617].
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