Healthe Care Australia Pty Ltd

[2018] FWCA 3117

[2018] FWCA 3117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Healthe Care Australia Pty Ltd
(AG2017/5129)

FORSTER PRIVATE HOSPITAL AND THE NSWNMA/ANMF ENTERPRISE AGREEMENT 2015 - 2018

Health and welfare services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 31 MAY 2018

Application for termination of the Forster Private Hospital and the NSWNMA/ANMF Enterprise Agreement 2015 – 2018 – Agreement terminated.

[1] Healthe Care Australia Pty Ltd (the Applicant) made an application under s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Forster Private Hospital and the NSWNMA/ANMF Enterprise Agreement 2015 - 2018 (the Agreement) 1. The application was received by the Fair Work Commission (the Commission) on 27 October 2017.

[2] The Agreement has a nominal expiry date of 30 June 2018. A ballot of employees covered by the Agreement was held in early October 2017, with all of the employees who voted voting to terminate the Agreement.

[3] On 14 November 2017, the New South Wales Nurses and Midwives’ Association and the Australian Nursing and Midwifery Federation New South Wales Branch wrote to the Commission advising they consent to the termination.

[4] On 17 November the Commission invited employees of Healthe Care Australia Pty Ltd to provide a written advice if they opposed the application and/or they wished to be heard. No employee contacted the Commission.

[5] In subsequent developments the Applicant wrote to the Commission requesting that the termination of the Agreement coincide with the commencement of the Healthe Care Pty Ltd (New South Wales Hospitals) and the NSNMA/ANMF NSW Branch Enterprise Agreement 2017 2.

[6] Subdivision C of Part 2-4 of the Act deals with the termination of agreements which are yet to pass their nominal expiry date. Subdivision C provides as follows:

“Subdivision C—Termination of enterprise agreements by employers and employees

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC

(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223

Limitation—greenfields agreement

(3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

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.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-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 of each individual employer who cast a valid vote have approved 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.”

[7] In consideration of the material before me, including the statutory declaration filed by the Applicant, I am satisfied that the requirements of ss.220(2), 221(1) and 223 as are relevant to this application for termination have been met.

[8] I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] In accordance with s.224 of the Act, the termination will come into effect on 6 June 2018.

 1   AE890216

 2   AE428570

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<AE890216, PR607626>