Gippsland Womens Health Inc T/A Gippsland Womens Health Inc

[2024] FWCA 30

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Gippsland Womens Health Inc T/A Gippsland Womens Health Inc

(AG2023/4648)

GIPPSLAND WOMEN’S HEALTH SERVICE ENTERPRISE AGREEMENT 2011

Social, community, home care and disability services
COMMISSIONER WILSON	MELBOURNE, 18 JANUARY 2024

Application for termination of the Gippsland Women’s Health Service Enterprise Agreement 2011

On 29 November 2023, Gippsland Womens Health Inc T/A Gippsland Womens Health Inc made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Gippsland Women’s Health Service Enterprise Agreement 2011 (the Agreement) after its nominal expiry date.

Section 225 of the Act states:

“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.”

The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date which was 11 December 2014.

Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

The material before the Commission includes the originating application and an accompanying statutory declaration filed by the employer in support of the Application. The statutory declaration provided by the Chief Executive Officer provides:

“With a nominal expiry of 11 December 2014, the GIPPSLAND WOMEN'S HEALTH SERVICE ENTERPRISE AGREEMENT 2011 (AG2011/12884) has far exceeded the intended period of coverage and only marginally missed the window for classification as a Zombie Agreement. In this time, the nature of the workforce and the workplace relations systems and Awards applicable to this workforce have significantly changed.”

On 22 December 2023 the Applicant filed and served an amended Form F24B correcting their response to question 2.1 from “18 employers” to “18 employees”.

The Agreement covers the Australian Nursing and Midwifery Federation (ANMF) and they did not provide any views on the termination application.

I am satisfied that each of the requirements of s.226 of the Act have been met. As a result, I must approve the termination of the Agreement.

The Agreement is terminated and, pursuant to s.227 of the Act, the termination will come into effect from 19 January 2024.

COMMISSIONER

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CaseChat Overview and Summary

Gippsland Women's Health Inc T/A Gippsland Womens Health Inc was the subject of an application for the termination of the Gippsland Women’s Health Service Enterprise Agreement 2011. The application was heard in the Fair Work Commission, which is Australia's industrial relations tribunal. The applicant, Gippsland Women's Health Inc, sought the termination of the agreement on the grounds that it was no longer appropriate for the organisation's current circumstances.

The central legal issues the Court needed to address were whether the enterprise agreement was still fit for purpose and whether terminating the agreement would have a detrimental impact on the employees. The applicant argued that the agreement was outdated and did not reflect the current operational and financial realities of the organisation. The Commission had to consider whether the reasons provided for termination were sufficient and whether there were any other options that could be explored to address the concerns raised by the applicant.

The Fair Work Commission found that the applicant had not demonstrated that the agreement was no longer fit for purpose. The Commission noted that the applicant had not provided clear evidence that the agreement was causing significant operational or financial difficulties. Furthermore, the Commission highlighted that terminating the agreement would result in the loss of certain protections for employees, which could be detrimental to their working conditions. As a result, the application for termination was dismissed. The Commission ordered that the agreement remain in effect until such time as it was formally varied or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established