myHomecare Pty Ltd
[2023] FWCA 1990
•30 JUNE 2023
| [2023] FWCA 1990 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument
myHomecare Pty Ltd
(AG2023/1708)
SUE MANN’S NURSING AND COMMUNITY CARE EMPLOYEE COLLECTIVE AGREEMENT 2007
| Health and welfare services | |
| COMMISSIONER MATHESON | SYDNEY, 30 JUNE 2023 |
Application for termination of the Sue Mann’s Nursing & Community Care Employee Collective Agreement 2007
On 2 June 2023, myHomecare Pty Ltd (Applicant) made an application (Application) to the Fair Work Commission (Commission) for approval of the termination of the Sue Mann’s Nursing & Community Care Employee Collective Agreement 2007 (Agreement) by agreement between the parties. The Agreement is a collective agreement-based transitional instrument. Item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (Act) (which deals with termination of enterprise agreements by employers and employees) 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.
Legislation
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)?
The Agreement identifies the employer covered by it as being Mann Healthcare Pty Ltd. The application identifies that in 2017 a name change occurred such that Mann Heathcare Pty Ltd became SMG Labour Pty Ltd. The ABN and ACN remained the same. In 2017 myHomecare Pty Ltd acquired SMG Labour Pty Ltd and the employees of SMG Labour Pty Ltd (previously Mann Healthcare Pty Ltd employees) transferred to myHomecare Pty Ltd at the time of the acquisition.
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?
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)?
Section 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.
It is declared in the Form F24A that the termination was agreed to on 26 May 2023.
The Commission’s records show the Application was filed on 2 June 2023, which means the application was made within 14 days after the termination was agreed to. I am satisfied that the Application was made within the timeframe required by s.222(3)(a) of the Act.
Consideration – s.223 of the Act
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.
Section 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?
It is declared in the Form F24A that covered employees were notified of the time, place and method of vote on 15 May 2023. Email evidence of this was provided as an attachment to the Form F24A.
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?
The question as to whether employees have been given a reasonable opportunity to decide if they want to approve the termination of the Agreement should be considered objectively against the particular facts and circumstances of the application. The Explanatory Memorandum to the Fair Work Bill at item 932 provides guidance on the meaning of a reasonable opportunity to decide:
“This may, for example, involve the employer allowing employees sufficient time between making the request and the time of the vote to consider the effect of the termination on their terms and conditions.”
It is declared in the Form F24A that the Applicant’s Acting General Manager conducted six information sessions with covered employees prior to the vote between 12 and 18 May 2023 and a copy of the presentation was attached to the Form F24A. Covered employees were also sent an email on 19 May 2023 which included answers to frequently asked questions at the information sessions.
Having considered the materials before me, I am satisfied that the Applicant gave employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by 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 and are there other reasonable grounds for believing that the employees have not agreed to the termination (s.223(c))?
Section 223(b) of the Act 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.
Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination.
I directed the Applicant to email a copy of the Commission’s Directions of 14 June 2023 to employees covered by the agreement with those Directions noting that the application had been made. The Directions required that any employee opposing the application file submissions and other documents with the Commission by 26 June 2023. A statutory declaration was filed as evidence of compliance with the Directions by the Applicant.
No submissions or objections to the application were filed by any employee and 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)
The application did not provide details of any employee organisations covered by the Agreement and there are no employee organisations stated as being covered by the Agreement within the Agreement itself. Notwithstanding this, I directed the Applicant to email a copy of the Commission’s Directions of 14 June 2023 to any relevant employee organisation or organisations with those Directions noting that the application had been made. The Directions required that any employee organisation opposing the application file submissions and other documents with the Commission by 26 June 2023. A statutory declaration was filed as evidence of compliance with the Directions by the Applicant.
No submissions or objections to the application were filed by any employee organisation.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
No submissions in opposition were made or filed.
Section 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.
The Applicant submitted that a primary consideration in the move to terminate the Agreement was the increases to modern awards that will come into effect from July 2023 and which mean that the employees will be better off under the relevant modern awards than the Agreement. The Applicant submitted that if the Agreement was terminated prior to 3 July 2023, employees would be worse off, albeit temporarily, if the modern awards applied to them. The Applicant requested that the Commission approve the termination of the Agreement on or after 3 July 2023.
In accordance with s.224 of the Act, the termination will come into effect from 3 July 2023.
An order to this effect [PR763824] has been issued concurrently with this decision.
COMMISSIONER
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