Gilbert Valley Senior Citizens Homes (Riverton) Inc T/A Gilbert Valley Senior Citizens Homes

[2021] FWCA 6557

[2021] FWCA 6557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Gilbert Valley Senior Citizens Homes (Riverton) Inc T/A Gilbert Valley Senior Citizens Homes
(AG2021/8172)

GILBERT VALLEY SENIOR CITIZENS HOMES (RIVERTON) INC NURSING EMPLOYEES ANMF – SA (AGED CARE) ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 10 NOVEMBER 2021

Application for termination of the Gilbert Valley Senior Citizens Homes (Riverton) Inc Nursing Employees ANMF - SA (Aged Care) Enterprise Agreement 2016

[1] On 3 November 2021, Gilbert Valley Senior Citizens Homes (Riverton) Inc T/A Gilbert Valley Senior Citizens Homes (Gilbert Valley or the Applicant) made an application for the termination of the Gilbert Valley Senior Citizens Homes (Riverton) Inc Nursing Employees ANMF – SA (Aged Care) Enterprise Agreement 2016 (the Agreement)pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

[2] Sections 222 and 223 of the Act are relevant to this application and are as follows:

“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.”

[3] The Agreement has a nominal expiry date of 30 June 2019 and currently covers one employee.

[4] The application was made within the time frame required.

[5] Attached to the current application was a Statutory Declaration of Mr Rob Vietch, Chief Executive Officer, which is relevantly summarised as follows:

•  On 18 October 2021, the employee was provided a letter advising her of the proposed termination. The letter included a comparison table showing the terms and conditions that would apply if the termination was successful as compared to the current terms and conditions.

•  The employee was provided with seven clear days to consider the information.

•  The employee was provided a further four days to decide by vote.

•  On 26 October 2021, the employee voted in favour of the termination of the Agreement.

[6] On 4 November 2021, the Australian Nursing and Midwifery Federation (ANMF), who are covered by the Agreement, advised that they supported the application.

[7] On 4 November 2021, the only employee covered by the Agreement was provided with Directions issued for this matter and was invited to provide any views on the application by no later than 4.00pm (ACDT), 10 November 2021. The employee covered by the Agreement did not express any views on the application.

[8] I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.

[9] The termination will come into effect from the date of this decision.

COMMISSIONER

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