Mecwacare

[2015] FWCA 5897

[2015] FWCA 5897

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Mecwacare
(AG2015/4577)

TRANSPORT FRIENDLY SOCIETY LTD (TRADING AS PARK HILL GARDENS AGED CARE), ANMF AND HSU ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER CRIBB	MELBOURNE, 25 AUGUST 2015

Application for termination of the Transport Friendly Society Ltd (trading as Park Hill Gardens Aged Care), ANMF and HSU Enterprise Agreement 2014.

[1] This decision concerns an application by Mecwacare (the company), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the Transport Friendly Society Ltd (trading as Park Hill Gardens Aged Care), ANMF and HSU Enterprise Agreement 2014 1(the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 25 February 2015. The Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF) are covered by the Agreement.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the Act states:

“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;
(c) an employee organisation 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] A statutory declaration was received from Ms Michele Lewis, Chief Executive Officer of the company, dated 20 July 2015. The statutory declaration outlined the grounds of the application. These were that a transfer of business occurred from Transport Friendly Society Ltd to Mecwacare with the Agreement continuing to apply to transferring employees at Park Hill Gardens. The Agreement only provided for two wage increases, the last of which was on 31 March 2014. Discussions were held with the bargaining representatives of the employees and it was decided that the sensible and reasonable approach would be to terminate the Park Hill Gardens Agreement. This would result in the employees at Park Hill Gardens becoming covered by the MECWA (trading as mecwacare), ANMF and HSU Enterprise Agreement 2014 2 (the MECWA Agreement). The MECWA Agreement has a nominal expiry date of 30 June 2017 and provides for wage increases on 1 May 2015, 2016 and 2017. It was stated that the terms and conditions contained in each of the agreements are the same or similar and that employees at Park Hill Gardens will be better off overall if the application is granted.

[6] Following discussions with the bargaining representatives, on 16 June 2015, Ms Lewis sent an e-mail to the affected employees explaining the course of action that had been agreed. Employees were invited to raise any concerns or make any comments by 3 July 2015. No communications were received.

[7] The views of both of the bargaining representatives was sought by the Commission. Advice has been received from the ANMF that it supports the application to terminate the Agreement.

[8] No submissions that the termination of the Agreement would be contrary to the public interest have been received.

[9] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest. Further, I have considered the circumstances of the matter and have concluded that the termination of the Agreement is appropriate.

[10] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today’s date, 25 August 2015.

 1   AE409831

 2  AE412304

Printed by authority of the Commonwealth Government Printer

<Price code A, AE409831  PR571231>