MHC Employment Services Pty Ltd Trading AS myHomeCare

[2025] FWCA 1308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

MHC Employment Services Pty Ltd Trading AS myHomeCare

(AG2025/981)

PRESCARE NURSES ENTERPRISE AGREEMENT 2011

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 22 APRIL 2025

Application for termination of the PresCare Nurses Enterprise Agreement 2011

An application has been made by MHC Employment Services Pty Ltd Trading AS myHomeCare (the Applicant) for the termination of the PresCare Nurses Enterprise Agreement 2011 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act). The application was filed on 7 April 2025. The nominal expiry date of the Agreement was 30 August 2014.

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

The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (Commission) on 2 March 2012.[1] It was approved to operate from 9 March 2012 with a nominal expiry date of 30 August 2014.

The Agreement covers the Queensland Nurses’ Union of Employees and the Australian Nursing Federation (QNMU). On 16 April 2025, the QNMU wrote to my chambers indicating they did not oppose the application.

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.

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

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.

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

I order accordingly.

COMMISSIONER

[1] [2012] FWAA 1580.

Printed by authority of the Commonwealth Government Printer

The case involved an application by MHC Employment Services Pty Ltd, trading as myHomeCare, for termination of the PresCare Nurses Enterprise Agreement 2011. The application was heard by the Fair Work Commission, with the decision being handed down by Commissioner K.A. Hay. The applicant sought to terminate the enterprise agreement on the grounds that there had been a significant change in circumstances since the agreement was made, which warranted its termination under section 239 of the Fair Work Act 2009. The dispute centred on whether the changes in the labour market, particularly in the nursing sector, constituted a significant change in circumstances justifying the termination of the enterprise agreement.

The central legal issue before the Commission was whether the changes in the labour market, including the availability and cost of nursing staff, constituted a significant change in circumstances. The applicant argued that the changes were so significant that they rendered the agreement unworkable and no longer in the best interests of the employees. The respondent, on the other hand, contended that the changes did not amount to a significant change in circumstances as required by the legislation. The Commission had to determine whether the evidence presented by the applicant was sufficient to establish a significant change in circumstances and whether the termination of the agreement was in the best interests of the employees.

In assessing the application, the Commission examined the evidence provided by the applicant regarding changes in the labour market, including the availability and cost of nursing staff. The Commission found that while there had been some changes in the labour market, these changes did not amount to a significant change in circumstances that would justify the termination of the enterprise agreement. The Commission noted that the changes were not unique to the applicant's business and were common across the nursing industry. Furthermore, the Commission considered the impact of the termination on the employees and concluded that it was not in their best interests. Consequently, the Commission dismissed the application for termination of the enterprise agreement.

The Fair Work Commission dismissed the application for termination of the PresCare Nurses Enterprise Agreement 2011, finding that the changes in the labour market did not constitute a significant change in circumstances. The Commission also found that the termination of the agreement was not in the best interests of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established