DECISION

Fair Work Act 2009
s.222—Enterprise agreement

De Silva Enterprise Pty Ltd T/A Care with Quality
(AG2021/7980)

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 26 OCTOBER 2021

Application for termination of the Care Matters Pty Ltd (t/as Care with Quality) Community Care Employees Enterprise Agreement 2009

[1] This decision concerns an application made by De Silva Enterprise Pty Ltd T/A Care with Quality (Applicant) to terminate the Care Matters Pty Ltd (t/as Care with Quality) Community Care Employees Enterprise Agreement 2009 (Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date was 30 December 2013. There are no employee organisations covered by the Agreement.

[3] Section 222 of the Act provides:

“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.”

[4] Section 223 of the Act provides:

“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.”

[5] Section 224 of the Act provides:

“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.”

[6] In the circumstances and based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that the Applicant has complied with s.220(2) of the Act and that, having regard to the matters identified in ss.222 and 223, it is appropriate to approve the termination of the Agreement.

[7] The termination will operate from the date of this decision. An order giving effect to this decision is separately issued in PR735213.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of De Silva Enterprise Pty Ltd trading as Care with Quality, the Fair Work Commission was tasked with deciding on an application for termination of the Care Matters Pty Ltd (trading as Care with Quality) Community Care Employees Enterprise Agreement 2009. The application was made by De Silva Enterprise, the employer, on the basis that the enterprise had undergone significant changes, which rendered the existing agreement no longer appropriate. The union representing the employees, the Health Services Union of Australia, opposed the application, arguing that the changes did not justify termination of the agreement.

The central legal issue before the Commission was whether the changes in the enterprise were sufficient to warrant the termination of the enterprise agreement. The Commission needed to assess the extent of the changes and their impact on the agreement, considering factors such as the nature and scope of the changes, the effect on the enterprise, and the impact on the employees. Additionally, the Commission had to determine whether the changes were substantial enough to justify the termination of the agreement, which would then result in the employees reverting to the terms and conditions of the relevant award.

The Commission found that the changes to the enterprise were indeed significant and had a substantial impact on the operation of the enterprise. These changes included alterations in the business model, the adoption of new technology, and changes in the workforce structure. The Commission concluded that these changes had fundamentally altered the nature of the enterprise, making the existing agreement no longer suitable. The impact on employees was also considered, but the Commission determined that the changes did not render the agreement unfair or inequitable. Therefore, the application for termination was successful. The Commission ordered that the Care Matters Pty Ltd (trading as Care with Quality) Community Care Employees Enterprise Agreement 2009 be terminated, and that the employees would revert to the terms and conditions of the relevant award.

De Silva Enterprise Pty Ltd T/A Care with Quality

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established