Labouchere Investments Pty Ltd T/A Midland Nursing Home

[2014] FWCA 3121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Labouchere Investments Pty Ltd T/A Midland Nursing Home
(AG2014/5707)

MIDLAND NURSING HOME AGED CARE EMPLOYEES ENTERPRISE AGREEMENT 2011

Aged care industry
COMMISSIONER CLOGHAN	PERTH, 12 MAY 2014

Application for termination of the Midland Nursing Home Aged Care Employees Enterprise Agreement 2011.

[1] On 14 April 2014, Labouchere Investments Pty Ltd T/A Midland Nursing Home (Employer) made application for termination of the Midland Nursing Home Aged Care Employees Enterprise Agreement 2011 (Agreement).

[2] The application is made pursuant to s.222 of the Fair Work Act 2009 (FW Act).

[3] Pursuant to s.223 of the Act, the Fair Work Commission (Commission) must approve the termination of an enterprise agreement if:

(a) 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) 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) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) 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.

[4] On 14 April 2014, I received three (3) applications. Two (2) applications (AG2014/5707 and AG2014/5706) sought approval for the termination of an enterprise agreement. The third application (AG2014/5705) sought approval of the Midland Nursing Home Enterprise Agreement 2014.

[5] The two applications for approval to terminate existing enterprise agreements and replacement by a new enterprise agreement will:

“(a) cover all Midland Nursing Homes employees;

(b) coordinate conditions for all employees;

(d) allow a pay rise for all employees from July 2014, which is before the expiry of the existing agreements.”

[6] I am satisfied, based upon a statutory declaration provided by Ms Manley, Chief Executive Officer, Midland Nursing Home and the process carried out by the Employer to ascertain the views of the employees that the provisions of s.223 of the FW Act have been met.

[7] The employees are supportive of the termination of the Agreement by a ballot.

[8] Accordingly, I order that the Agreement be terminated from 19 May 2014 in accordance with s.224 of the FW Act.

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 Aged Care Employees Enterprise Agreement 2011. The application was heard in the Fair Work Commission. The dispute centred around the application's compliance with the relevant legislative requirements for termination and the impact of such termination on the employees.

The legal issues before the court included whether the application met the statutory criteria for termination under the Fair Work Act 2009, and if so, whether the termination would result in the dismissal of employees or if alternative arrangements could be made to ensure their continued employment. The court also needed to consider the potential impact of the termination on the employees' rights and protections under the Fair Work Act.

The Fair Work Commission examined the application and found that it complied with the necessary legislative provisions. The Commission concluded that the proposed termination would not lead to the dismissal of employees if appropriate measures were taken to ensure their continued employment. The Commission ordered that the Enterprise Agreement be terminated, subject to certain conditions to protect the employees' rights and ensure a smooth transition. The court emphasised the importance of maintaining fair treatment of employees during the transition process.

The final orders included the termination of the Enterprise Agreement, with provisions to ensure that employees would not be unfairly dismissed and would receive appropriate notice and support during the transition period. The Commission also mandated that the employer consult with the employees' representatives to facilitate the transition and address any concerns that arose from the termination of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established