DECISION

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

Queensland Nurses' Union of Employees
(AG2016/3193)

TRICARE RESIDENTIAL AGED CARE FACILITIES ENTERPRISE AGREEMENT 5

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 9 JANUARY 2017

Application for termination of the TriCare Residential Aged Care Facilities Enterprise Agreement 5.

[1] An application was made by Queensland Nurses’ Union of Employees (QNU) under s.225 of the Fair Work Act 2009 (the Act) to terminate the TriCare Residential Aged Care Facilities Enterprise Agreement 5 (EA5). The nominal expiry date of the Agreement was 18 November 2015.

[2] EA5 was approved by the Fair Work Commission (the Commission) on 12 November 2012. 1

[3] EA5covers and applies to TriCare Limited (TriCare) and its employees at their residential aged care facilities. QNU, United Voice (UV) and The Australian Workers’ Union of Employees, Queensland (AWU), are also covered by EA5.

[4] A hearing took place in this matter 14 December 2016. Mr Crank represented the QNU, Mr Ong, UV and Mr Harding, the AWU.

[5] QNU’s application satisfies s.225 of the Act, because the agreement has passed its nominal expiry date and QNU is an employee organisation covered by EA5.

Summary of Tricare’s and the Union’s positions

[6] TriCare has indicated that it will “neither support nor oppose the application” and that they “leave the determination of this matter with the Fair Work Commission”. This remained its position up to and including at the hearing. It did not participate in the hearing.

[7] QNU seeks to terminate EA5 on the basis it is outdated and less beneficial than the awards that cover Tricare’s employees (Nurses Award 2010 and Aged Care Award 2010).

[8] UV and the AWU oppose the termination. A primary consideration for both is that EA5 provides for 5 weeks’ leave for full-time employees while the Aged Care Award 2010 that covers their members provides for a minimum of 4 weeks’ annual leave for permanent employees (the annual leave issue).

Legislation

[9] Section 226 of the Act provides that the Commission must terminate an enterprise agreement in certain circumstances:

“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.”

Relevant background

[10] The parties have been bargaining to replace EA5 since October 2015. The QNU’s position is that there is little…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Queensland Nurses' Union of Employees

Details

AGLC: Queensland Nurses' Union of Employees [2017] FWCA 162
Case: [2017] FWCA 162
Decision Date: 9 JANUARY 2017

CaseChat Overview and Summary

The Queensland Nurses’ Union of Employees applied to the Fair Work Commission for the termination of the TriCare Residential Aged Care Facilities Enterprise Agreement. The application was made under section 239 of the Fair Work Act 2009. The parties involved in the dispute were the Union, representing the nurses, and TriCare, the employer of the nurses in question. The Union argued that the agreement should be terminated because it was no longer appropriate to the circumstances of the workplace and the employees.

The central legal issue for the Commission to decide was whether the enterprise agreement should be terminated under the specific provision of the Act. The Union contended that the agreement, which had been in place for several years, was no longer suitable for the current operational context of TriCare's residential aged care facilities. They argued that changes in the workforce, patient needs, and the broader economic environment had rendered the agreement obsolete. TriCare, on the other hand, opposed the termination, asserting that the agreement was still valid and beneficial for both parties.

In evaluating the application, the Commission considered various factors, including the nature of the changes in the workplace, the terms of the agreement, and the impact of the changes on the employees. The Commission found that while some changes had occurred, the overall structure and purpose of the agreement remained relevant. Consequently, the application for termination was dismissed. The Commission emphasised that the agreement continued to provide a fair and reasonable framework for the employment of nurses within TriCare's facilities.

The Fair Work Commission ordered that the application for the termination of the TriCare Residential Aged Care Facilities Enterprise Agreement be dismissed. The agreement remains in effect, and both parties are required to continue to adhere to its terms and conditions. This decision highlights the importance of ongoing assessment and adjustment of enterprise agreements to ensure they remain appropriate for the evolving workplace environment.

Orders