Oxley Home Care Pty Ltd T/A Oxley Home Care

[2021] FWCA 5185

[2021] FWCA 5185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Oxley Home Care Pty Ltd T/A Oxley Home Care
(AG2021/6404)

OXLEY HOME CARE COLLECTIVE AGREEMENT 2008

Health and welfare services
COMMISSIONER MATHESON	SYDNEY, 20 AUGUST 2021

Application for termination of the Oxley Home Care Collective Agreement 2008.

[1] On 26 July 2021, Oxley Home Care Pty Ltd T/A Oxley Home Care (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Oxley Home Care Collective Agreement 2008 (Agreement).

Legislation

[2] The Agreement is a collective agreement-based transitional instrument made under the repealed Workplace Relations Act 1996 (Cth). Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) provides that subdivision D of Division 7 of Part 2-4 of the 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.

[3] In this regard, the Act relevantly provides as follows:

“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.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

[4] Clause 2 of the Agreement names Oxley Home Care as a party to the Agreement. Clause 3 of the Agreement defines ‘Oxley Home Care’ as ‘Oxley Blue Pty Limited trading as Oxley Home Care [ABN 56 119 541 874]’. The Applicant shares the same ABN as Oxley Blue Pty Limited and I am satisfied that it is the same legal entity.

[5] Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

[6] The Agreement is a collective agreement-based transitional instrument made under the repealed Workplace Relations Act 1996 (Cth). Subitem 16(2) of Schedule 3 of the TPCA Act has the effect that the Agreement’s nominal expiry date is taken to be the end of the period of the agreement for the purposes of the Application.

[7] Having considered the materials filed by the Applicant and clause 5 of the Agreement I am satisfied the Agreement has passed its nominal expiry date.

[8] Materials filed by the Applicant indicate the Agreement commenced operation on 11 March 2009 and clause 5 of the Agreement provides that the Agreement had a nominal expiry date of 5 years from the date it came into effect. Materials filed by the Applicant and supported by a Form F24C declaration by Mr Gordon Parish indicate the Agreement passed its nominal expiry date in March 2014.

Consideration – s.226

Section 226(a) – Public interest

[9] The Applicant submits that in the circumstances terminating the Agreement is not contrary to public interest.

[10] In all the circumstances and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreement.

Section 226(b) – Appropriateness

[11] The Application indicates that one employer is covered by the Agreement. The Application also indicates that this employer is not covered as a result of transfer of business. The Applicant subsequently sought a correct to the application to indicate that by virtue of s.313(1)(a) of the Act, myHomecare Pty Ltd is also an employer covered by the agreement as a result of a transfer of business.

[12] I am satisfied that a correction to the application should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[13] A statutory declaration of Mr Miller, Chief Executive Office of myHomecare Pty Ltd, has been provided which states that myHomecare Pty Ltd consents to the termination.

[14] There are no employee organisations covered by the Agreement.

[15] On 30 July 2021, the Commission directed that:

(a) by no later than 4:00 pm on Friday, 30 July 2021, the Applicant must serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement;

(b) by no later than 4:00 pm on Monday, 2 August 2021, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;

(c) by no later than 4.00 pm on Friday, 6 August 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement an outline of arguments, statements of evidence or other documents the Applicant intend to rely upon in support of its application to terminate the Agreement;

(d) by no later than 4.00 pm on Thursday, 12 August 2021, any employee or employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and

(e) by no later than 4.00 pm on Monday 16 August 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement any materials it wishes to file in reply.

[16] The Commission’s directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.

[17] On 2 August 2021, Ms Manatua filed a statutory declaration confirming compliance with the above directions, including supporting documentation.

[18] No submissions in opposition were filed by any employee.

[19] Mr Parish has declared in the Form F24C that rates of pay, allowances and other terms and conditions under the Agreement have not kept pace with industry awards and that the Agreement is no longer current or relevant to employers or employees. The Form F24C indicates that the termination of the agreement would have a technical/administrative effect only and would not result in a change to employees’ overall terms and conditions of employment. Materials filed by the Applicant also indicate that when employees transferred to myHomecare Pty Ltd that entity agreed to observe the terms of the relevant industry awards being the Social, Community, Home Care and Disability Services Industry Award 2010 and Nurses Award 2010 as relevant.

Conclusion

[20] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

[21] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from the date of this Decision. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

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