Macarthur Paediatric Occupational Therapy T/A Macarthur Paediatric Occupational Therapy

[2021] FWCA 5857

[2021] FWCA 5857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Macarthur Paediatric Occupational Therapy T/A Macarthur Paediatric Occupational Therapy
(AG2021/6735)

MACARTHUR PAEDIATRIC OCCUPATIONAL THERAPY ENTERPRISE BARGAINING AGREEMENT 2019

Health and welfare services
COMMISSIONER MATHESON	SYDNEY, 16 SEPTEMBER 2021

Application for termination of the Macarthur Paediatric Occupational Therapy Enterprise Bargaining Agreement 2019.

[1] On 17 August 2021, Macarthur Paediatric Occupational Therapy T/A Macarthur Paediatric Occupational Therapy (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Macarthur Paediatric Occupational Therapy Enterprise Bargaining Agreement 2019 (Agreement).

[2] The Agreement is a single enterprise agreement. It was approved by Deputy President Young on 12 July 2019. 1  The nominal expiry date of the Agreement is 12 July 2023.

Legislation

[3] The relevant provisions of the Act are as follows:

“220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration – s.222 of the Act

Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?

[1] The employer covered by the Agreement is Macarthur Paediatric Occupational Therapy (ABN 60 103 136 492). This is the same as the employer named in the Form F24 – Application for termination of an enterprise agreement by agreement (Form F24).

[2] Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standing to make the Application.

Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?

[3] The Application is accompanied by a Form F24A – declaration in support of termination of an enterprise agreement (Form F24A). I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and that the requirements of s.222(2) of the Act have been met.

Has the Application been made within the required timeframe per s.222(3)(a)?

[4] S.222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.

[5] Ms Hypatidis declared in the Form F24A that the termination was agreed on 9 August 2021.

[6] The Commission’s records show the Application was filed on 17 August 2021, within 14 days after the termination was agreed.

[7] I am satisfied that the requirements of s.222(3) of the Act have been met.

Consideration – s.223 of the Act

[8] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

S.220(2)

[9] S.223(a) of the Act requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.

Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?

[10] In the Form F24A, Ms Hypatidis declared that employees were emailed information about the vote and the voting form on 28 July 2021. A copy of the email was provided by the Applicant. That email contained information about the time and place at which the vote was to occur and voting method used.

[11] Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.

Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?

[12] At question 2.1 of the Form F24A, Ms Hypatidis declared that the proposed termination was raised with staff in a team meeting on 14 July 2021. Ms Hypatidis also declared a meeting was held on 27 July 2021 with staff covered by the agreement to discuss the reason for the termination and answer questions.

[13] A copy of the agenda and minutes of both meetings were provided by the Applicant. A hearing was held on 16 September 2021 in which the Applicant provided further explanation regarding the matters discussed with employees regarding the proposed termination.

[14] In all the circumstances, I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the Act.

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

[15] S.223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.

[16] At question 2.1 of the Form F24A, Ms Hypatidis declared that nine employees are covered by the Agreement, eight of these employees cast a valid vote and all eight of these employees voted to approve the termination of the Agreement.

[17] The Commission requested further information about how the vote was conducted and evidence of the voting outcome. Copies of the completed ballot forms were provided.

[18] Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.

Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

[19] On 19 August 2021 the Commission directed that:

(a) by no later than 4:00 pm on Friday, 20 August 2021, the Applicant must email a copy of the directions to its employees and any relevant employee organisations (if any); 

(b) by no later than 4:00pm on Monday, 23 August 2021, 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 the directions; and 

(c) by no later than 4.00pm Monday, 30 August 2021, any employee or relevant employee organisations (if any) which oppose the termination of the Agreement must file in the Commission any submissions, written statements and documents they rely upon in opposition to the termination of the Agreement. 

[20] The Commission also directed that if any party was seeking a hearing, then this request should be made along with the filing of materials as per the above program and that in the absence of such a request the matter will be determined on the papers. 

[21] On 23 August 2021, Ms Hypatidis filed a statutory declaration (Statutory Declaration) confirming that the directions had been emailed to employees on ‘Thursday 18 August 2021’. The Applicant subsequently advised this was a typographical error intended to read as ‘Thursday 19 August 2021’. A copy of the email provided to employees on 19 August 2021 was provided to the Commission by the Applicant.

[22] No submissions in opposition were filed by any employee.

[23] The matter was listed for hearing before the Commission on 16 September 2021. The Commission directed that the Applicant provide employees and any of their representatives with copy of the Notice of Listing and Directions.

[24] The Applicant attended the hearing with a representative. Five employees also attended the hearing. The employees were invited to provide their views in relation to the Application. No employee present at the hearing raised any concern regarding the process followed by the Applicant or the explanations provided by the Applicant in relation to the proposed termination of the Agreement. Rather, employees present at the at the hearing expressed the view that the information and explanations provided were clear and opportunities to ask questions were provided. No employee at the hearing raised any matters that would provide reasonable grounds for believing that the employees have not agreed to the termination.

[25] Having considered the material before the Commission and the views of employees at the hearing on 16 September 2021, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)

[26] The Applicant indicated in its Form F24 that there are not any employee organisations covered by the Agreement. The Statutory Declaration of Ms Hypatidis states the same.

Conclusion

[27] Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.

[28] No submissions in opposition were made or filed.

[29] S.224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.

[30] In accordance with s.224 of the Act, the termination will come into effect from 16 September 2021.

[31] An Order to this effect PR734049 has been issued concurrently with this decision.

COMMISSIONER

<AE504420  PR734048>

Printed by authority of the Commonwealth Government Printer

 1   [[2019] FWCA 4866].