MHC Employment Services Pty Ltd Trading AS myHomeCare

[2025] FWCA 1321

[2025] FWCA 1321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

MHC Employment Services Pty Ltd Trading AS myHomeCare

(AG2025/960)

PRESCARE ALLIED HEALTH ENTERPRISE AGREEMENT 2018

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 23 APRIL 2025

Application for termination of the PresCare Allied Health Enterprise Agreement 2018

1. An application has been made by MHC Employment Services Pty Ltd Trading AS myHomeCare (the Applicant) for the termination of the PresCare Allied Health Enterprise Agreement 2018 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act). The application was filed on 7 April 2024. The nominal expiry date of the Agreement was 31 March 2021.

1. Sections 222 and 223 of the Act set out the conditions which must be met for an agreement to be terminated by agreement pursuant to s.222 of the Act:

“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.”

Consideration

1. The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (Commission) on 12 April 2019.[1] It was approved to operate from 19 April 2019 with a nominal expiry date of 31 March 2021.

1. The Agreement covers the Australian Municipal, Administrative, Clerical and Services Union (ASU). On 22 April 2025, the ASU wrote to my chambers indicating they did not oppose the application.

1. Hayley Taylor, Workplace Relations Practice Lead from the Applicant filed a Form F24A Statutory Declaration. The Statutory Declaration included information outlining the steps taken by the employer to ensure that the employees covered by the Agreement were given a reasonable opportunity to decide whether they wanted to approve the termination and steps taken to notify all employees about the vote.

1. The Statutory Declaration also indicated that the 1 staff member covered by the Agreement, cast a valid vote and voted to approve the termination.

1. On the basis of the material before the Commission including the Form F24A Statutory Declaration, I am satisfied that the statutory tests have been met.

1. The application to terminate the Agreement is approved and the termination will take effect from 5 May 2025.

1. I order accordingly.
   

COMMISSIONER

[1] [2019] FWCA 2533.

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