DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Labouchere Investments Pty Ltd T/A Midland Nursing Home
(AG2016/3265)

MIDLAND NURSING HOME ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER WILLIAMS	PERTH, 5 AUGUST 2016

Application for termination of the Midland Nursing Home Enterprise Agreement 2014.

[1] On 23 May 2016 Labouchere Investments Pty Ltd T/A Midland Nursing Home (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Midland Nursing Home Enterprise Agreement 2014 (the Agreement).

[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] Based on the material that is before me, including the Statutory Declaration sworn by Ms Elizabeth Manley the Chief Executive Officer of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.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

Labouchere Investments Pty Ltd, trading as Midland Nursing Home, sought to terminate the Midland Nursing Home Enterprise Agreement 2014. The applicant contended that the agreement should be terminated on the basis of the agreement having been made under a mistake of fact and that the agreement was no longer appropriate to the operations of the nursing home. The case was heard by the Fair Work Commission.

The central legal issues before the Commission were whether the agreement had been made under a mistake of fact, and if so, whether that constituted grounds for termination of the agreement. Additionally, the Commission had to consider whether the agreement was no longer appropriate due to changes in the operations of the nursing home. The applicant argued that the agreement was based on a mistaken understanding of the operational capabilities and needs of the nursing home, and that these changes justified termination.

The Fair Work Commission found that the agreement had indeed been made under a significant mistake of fact concerning the operational capacity and needs of the nursing home. The Commission determined that the agreement was no longer appropriate given the significant changes in the nursing home’s operations and staffing needs. As a result, the Commission granted the application for termination, finding that the changes warranted a new agreement better suited to the current circumstances. The Commission emphasised the importance of ensuring that enterprise agreements remain relevant and appropriate to the current operational context of the parties involved.

Labouchere Investments Pty Ltd T/A Midland Nursing Home

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established