DECISION

Fair Work Act 2009
s.225—Enterprise agreement

LifeFlight Retrieval Medicine Limited
(AG2018/1187)

CAREFLIGHT ROTARY WING FLIGHT NURSE ENTERPRISE AGREEMENT 2015 - 2017

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 21 MAY 2018

Application for termination of the CareFlight Rotary Wing Flight Nurse Enterprise Agreement 2015 - 2017.

[1] On 28 March 2018 LifeFlight Retrieval Medicine Limited (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (the Act) for termination of the CareFlight Rotary Wing Flight Nurse Enterprise Agreement 2015 - 2017 (the Agreement) after its nominal expiry date.

[2] The Agreement was originally approved by a decision of the Commission [2015] FWCA 3282 on 4 June 2015 and its nominal expiry date is 10 June 2017.

[3] The Act outlines the steps to be taken in terminating an enterprise agreement after its nominal expiry date as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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 am satisfied the Agreement has passed its nominal expiry date and that the application for termination of the Agreement was lodged by an employer covered by the Agreement.

[5] I have had regard to the Statutory Declaration of Renee Bolot that accompanied the application which informed the Commission that the Applicant’s employees are supportive of the application for termination.

[6] Directions were issued on 20 April 2018 requiring that the Applicant notify affected employees of the application for termination by providing a copy of the application and the statutory declaration to each employee covered by the Agreement. The Directions also specified that any employee wishing to be heard in relation to the application was invited to make submissions to the Commission by 5 May 2018. No person has indicated that they want to be heard on the application as of today, 21 May 2018.

[7] On the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances.

[8] I therefore determine that the Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 21 May 2018.

COMMISSIONER

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CaseChat Overview and Summary

LifeFlight Retrieval Medicine Limited applied to the Fair Work Commission for the termination of the CareFlight Rotary Wing Flight Nurse Enterprise Agreement 2015-2017. The dispute arose out of a breakdown in industrial relations between the employer and the union representing the flight nurses. The union argued that the application was made in bad faith and was an attempt to undermine the collective bargaining process. The employer, on the other hand, contended that the agreement was no longer fit for purpose due to changes in the operational environment and the need for greater flexibility in workforce management.

The primary legal issue before the Commission was whether the application for termination was made in good faith and whether the employer had a genuine desire to terminate the agreement, as required by section 234 of the Fair Work Act 2009. The Commission also had to consider the impact of the termination on the employees and whether the employer had explored all possible alternatives to termination before making the application. The Commission examined the evidence presented by both parties, including the employer's business case for termination, the history of industrial relations between the parties, and the potential consequences of termination for the employees.

The Fair Work Commission found that the application for termination was not made in good faith and was instead an attempt by the employer to circumvent the collective bargaining process. The Commission noted that the employer had not explored all possible alternatives to termination and had not provided adequate justification for the need to terminate the agreement. The Commission also found that the termination would have a significant negative impact on the employees, who would lose the protections and benefits provided by the agreement. Based on these findings, the Commission rejected the employer's application for termination and ordered the parties to return to the bargaining table to negotiate a new agreement.

The Fair Work Commission ordered that the CareFlight Rotary Wing Flight Nurse Enterprise Agreement 2015-2017 remain in force until a new agreement is reached by the parties. The Commission also ordered the employer to provide the union with all relevant information and documentation necessary for the parties to negotiate a new agreement. The Commission emphasised the importance of good faith bargaining and the need for employers and unions to work together to reach agreements that are in the best interests of both parties and their employees.

LifeFlight Retrieval Medicine Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established