Labouchere Investments Pty Ltd T/A Midland Nursing Home

[2014] FWCA 3118

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
(AG2014/5706)

MIDLAND NURSING HOME NURSING, HEALTH PROFESSIONALS AND SUPPORT STAFF ENTERPRISE AGREEMENT 2011

Aged care industry
COMMISSIONER CLOGHAN	PERTH, 12 MAY 2014

Application for termination of the Midland Nursing Home Nursing, Health Professionals and Support Staff 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 Nursing, Health Professionals and Support Staff 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 (AG2014/5706 and AG2014/5707) 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

Printed by authority of the Commonwealth Government Printer

Labouchere Investments Pty Ltd, trading as Midland Nursing Home, applied for the termination of the Midland Nursing Home Nursing, Health Professionals and Support Staff Enterprise Agreement 2011. The application was heard in the Fair Work Commission. The dispute centred around the validity and enforceability of the enterprise agreement, with specific concerns regarding the scope and applicability of certain clauses within the agreement.

The primary legal issues before the Commission were whether the enterprise agreement had been properly certified and whether the application to terminate was within the scope of the Fair Work Act 2009. Labouchere Investments argued that the agreement had not been fairly and properly made and certified, and therefore should not be enforced. The Commission had to determine if the agreement met the legal requirements for certification and if the application for termination complied with the legislative framework.

In its decision, the Commission found that the enterprise agreement had indeed been properly certified and was therefore legally binding. The Commission also concluded that the application for termination was not valid under the Fair Work Act. The reasoning was based on the procedural requirements for termination applications and the need for the application to be lodged within the specified timeframes. The Commission determined that Labouchere Investments had not met the necessary criteria for termination, and thus the application was dismissed. The enterprise agreement remained in effect, binding both parties to its terms.

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