Japara Administration Pty Ltd

[2019] FWCA 8465

[2019] FWCA 8465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Japara Administration Pty Ltd
(AG2019/4314)

AGED CARE SERVICES AUSTRALIA GROUP PTY LTD (COFFS HARBOUR AGED CARE FACILITY AND SOUTH WEST ROCKS AGED CARE FACILITY), NEW SOUTH WALES EMPLOYEE ENTERPRISE AGREEMENT 2016

Aged care industry
COMMISSIONER JOHNS	PERTH, 17 DECEMBER 2019

Application for termination of the Aged Care Services Australia Group Pty Ltd (Coffs Harbour Aged Care Facility and South West Rocks Aged Care Facility), New South Wales Employee Enterprise Agreement 2016.

[1] On 11 November 2019, Japara Administration Pty Ltd (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the Aged Care Services Australia Group Pty Ltd (Coffs Harbour Aged Care Facility and South West Rocks Aged Care Facility), New South Wales Employee Enterprise Agreement 2016 [AE422371](the ACSAG Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement has a nominal expiry date of 1 January 2020.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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 application was supported by a Statutory Declaration made on 11 November 2019 by Jennifer Anderson, Industrial Relations Manager of the Applicant. Ms Anderson declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) On 4 October 2019, a memorandum was provided to employees that a vote was to occur to terminate the Agreement setting out that in order for the proposed Japara Administration Pty Ltd New South Wales Employee Enterprise Agreement 2019 to apply to employees at Coffs Harbour and South West Rock Facilities and replace the ACSAG EA staff would be asked to vote in a separate ballot to approve the termination of the ACSAG EA.

b) Staff meetings were held to explain the contents of the memorandum and Ms Anderson was available for further questions and/or discussions with the employees.

c) On 21 October 2019 voting commenced. Voting concluded on 28 October 2019.

[4] Ms Anderson also declared that of the 217 employees covered by the Agreement, 124 cast a valid vote and 119 voted to terminate the Agreement.

[5] On 14 November 2019 the Commission directed that:

a. By no later than 4:00 pm Thursday, 21 November 2019, the Applicant must email a copy of these directions to its employees and any relevant employee organisations (if any);

b. By no later than 4:00 pm Thursday, 28 November 2019, a director or officer of the Applicant must file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with these directions;

c. By no later than 4:00 pm on Thursday, 12 December 2019, any employee or relevant employee organisations (if any) which oppose the termination of the Aged Care Services Australia Group Pty Ltd (Coffs Harbour Aged Care Facility and South West Rocks Aged Care Facility), New South Wales Employee Enterprise Agreement 2016 (Agreement) must file in the  Commission (by emailing [email protected]) any submissions, written statements and other documents they rely upon in opposition to the termination of the Agreement.

(FWC Directions)

[6] On 26 November 2019, Ms Anderson filed a Statutory Declaration in the Commission to declare that the directions issued by the Commission on 14 November 2019 had been adhered to and served upon all employees of the Applicant.

[7] No submissions in opposition were filed to date.

[8] On 10 December 2019, I approved the Japara Administration Pty Ltd New South Wales Employee Enterprise Agreement 2019 [AE506431] which is the subject of this s.222 application. It has an operative date of today, 17 December 2019.

[9] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[10] In accordance with s.224 of the Act, the termination will come into effect today, 17 December 2019.

COMMISSIONER

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<AE422371  PR715281>