Etnor Pty Ltd Trading AS St George's Park Nursing Home
[2025] FWCA 1723
•26 MAY 2025
| [2025] FWCA 1723 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Etnor Pty Ltd Trading AS St George's Park Nursing Home
(AG2025/1315)
ETNOR PTY LTD TRADING AS ST GEORGE'S PARK NURSING HOME NURSES ENTERPRISE AGREEMENT 2010
| Health and welfare services | |
| COMMISSIONER PLATT | ADELAIDE, 26 MAY 2025 |
Application for termination of the Etnor Ply Ltd Trading as St George's Park Nursing Home Nurses Enterprise Agreement 2010
On 2 May 2025, Etnor Pty Ltd Trading AS St George's Park Nursing Home (the Applicant) made an application for termination of the Etnor Ply Ltd Trading as St George's Park Nursing Home Nurses Enterprise Agreement 2010 (the Agreement), a single-enterprise agreement that had passed its nominal expiry date pursuant to s.225 of the Fair Work Act 2009 (the Act).
The nominal expiry date of the Agreement was 31 August 2014.
LEGISLATION
The following sections of the Act are relevant to this application:
“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 employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii)if the agreement contains terms providing entitlements relating to the termination of employees' employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a)the employees (unless there are no employees covered by the agreement);
(b)each employer;
(c)each employee organisation (if any).”
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement ), the FWC must have regard to:
(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)whether bargaining for the proposed enterprise agreement is occurring; and
(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
CONSIDERATION
The Applicant is the employer covered by the Agreement.
The application was supported by a Form F24C declaration of Matthew Snell, Company Director, which is relevantly summarised as follows:
· The Agreement covers the employer (Etnor Pty Ltd Trading AS St George's Park Nursing Home), employees as described in Schedule 3 of the Agreement and the Australian Nursing and Midwifery Federation – SA Branch (ANMF).
· The Applicant had one residential aged care facility (St George's Park Nursing Home) which closed indefinitely on 31 October 2021 due to a decline in resident numbers and overall condition of the physical premises. The license/accreditation for the premises has not been renewed.
· All employees covered by the Agreement were terminated by way of redundancy.
· The Applicant has not employed any employees to perform work as enrolled/registered nurses since closure of the facility and does not intend to do so in the foreseeable future due to there being no work.
On 5 May 2025, I issued Directions seeking views from the employee organisation (ANMF) covered by the Agreement in accordance with s.226(3) of the Act. The ANMF advised they did not oppose the application.
Based on the information received, I am satisfied pursuant to s226(1)(b) that the Agreement does not and is not likely to cover any employees.
I have considered the views of the ANMF and the employer (by virtue of the application) and I am satisfied having regard to s226(1A) of the Act, that it is appropriate in all circumstances to terminate the Agreement.
In accordance with s.227 of the Act, the termination will come into effect from today, 26 May 2025.
COMMISSIONER
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