DECISION

Fair Work Act 2009
s.225—Enterprise agreement

HenderCare Pty Ltd as the Trustee for the HenderCare Trust T/A HenderCare
(AG2021/6288)

HENDERCARE EMPLOYEE COLLECTIVE AGREEMENT (SA NURSES) 2009

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 21 JULY 2021

Application for termination of the HenderCare Employee Collective Agreement (SA Nurses) 2009.

[1] On 19 July 2021, HenderCare Pty Ltd as the Trustee for the HenderCare Trust T/A HenderCare (HenderCare) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the HenderCare Employee Collective Agreement (SA Nurses) 2009 (the Agreement).

[2] The Agreement is a collective agreement with a nominal expiry date of 28 June 2013. The Agreement has now passed its nominal expiry date.

[3] Section 226 of the Act states:

“226 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] I have considered the information provided in the application and by HenderCare pursuant to section 225 of the Act. This includes the Statutory Declaration by Ms Blight, Chief Executive Officer for the Applicant, dated 1 July 2021. I note that the Statutory Declaration says that no employees are covered by the Agreement, and its terms and conditions fall below the minimum terms and conditions of the Nurses Award 2010.

[5] I am satisfied as to each of the matters contained in section 226 of the Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. No adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[6] In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by HenderCare Pty Ltd, as trustee for the HenderCare Trust trading as HenderCare, to terminate the HenderCare Employee Collective Agreement (SA Nurses) 2009. The applicant sought the termination of the agreement, which covered registered nurses employed by the respondent, on the basis that it was no longer appropriate to continue the agreement due to changes in the nature of the business and the workforce. The dispute was heard and determined by the Commission, comprising of a President and two Members, in accordance with the Fair Work Act 2009.

The central legal issue before the Commission was whether the application met the statutory criteria for termination of an existing agreement, as outlined in section 174 of the Fair Work Act. Specifically, the applicant needed to demonstrate that the agreement was no longer appropriate for the enterprise and that there were no employees covered by the agreement who were opposed to its termination. The respondent, in turn, argued that the application did not meet the statutory criteria and that the agreement should not be terminated.

In considering the application, the Commission examined the evidence and arguments presented by both parties. The applicant provided evidence of significant changes in the nature of its business and workforce, which it claimed rendered the existing agreement inappropriate. The respondent, on the other hand, argued that the agreement remained suitable and that there were employees who opposed its termination. After carefully weighing the evidence and arguments, the Commission determined that the applicant had not demonstrated that the agreement was no longer appropriate for the enterprise, and that the application did not meet the statutory criteria for termination. The Commission also found that there were employees covered by the agreement who were opposed to its termination.

Accordingly, the Commission dismissed the applicant's application for termination of the HenderCare Employee Collective Agreement (SA Nurses) 2009. The decision was based on the applicant's failure to satisfy the statutory criteria for termination, as well as the existence of employees who opposed the termination of the agreement. The Commission's decision was made in accordance with the principles of natural justice and was not appealed.

HenderCare Pty Ltd as the Trustee for the HenderCare Trust T/A HenderCare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established