Medibank Private Limited

[2020] FWCA 3984

[2020] FWCA 3984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Medibank Private Limited
(AG2020/2010)

MEDIBANK ENTERPRISE AGREEMENT 2016

Banking finance and insurance industry
COMMISSIONER MCKINNON	MELBOURNE, 29 JULY 2020

Application for termination of the Medibank Enterprise Agreement 2016.

[1] Medibank Private Limited has applied to terminate the Medibank Enterprise Agreement 2016 (the Agreement) which nominally expired on 30 September 2019. The Agreement covers Medibank Private and its wholly owned subsidiary Australian Health Management Group Pty Ltd, their employees, the Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing and Midwifery Federation and the Community and Public Sector Union.

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[3] The Agreement expired on 30 September 2019. It covers and applies to 32 team leaders employed by Medibank Private. Of those 32 employees, 78% support the termination of the Agreement on the basis that their employment will instead become governed by common law contracts underpinned by the Medibank Award 2004.

[4] While Australian Municipal, Administrative, Clerical and Services Union and the Community and Public Sector Union do not oppose the application, they are concerned about the voting process preceding this application and about the preservation of entitlements for affected employees if the application is granted. The Australian Nursing and Midwifery Federation has made no objection to the application.

[5] Having reviewed the materials, I am satisfied that termination of the Agreement would not be contrary to the public interest. It is what the employers and a majority of employees want. While termination will mean that terms of the Agreement no longer operate, employees will be better off overall under the proposed common law contracts of employment read together with relevant employer policies and the underlying enterprise award. Those affected have been made aware that the enterprise award may ultimately be terminated in connection with the award modernisation process after which the modern award, which gives effect to the modern awards objective, will apply. Each stakeholder group either supports or does not oppose the application.

[6] In the circumstances, it is appropriate to terminate the Agreement. The Agreement is terminated effective from today.

COMMISSIONER

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