Salisbury Private Nursing Home Pty Ltd

[2024] FWC 1062

[2024] FWC 1062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Salisbury Private Nursing Home Pty Ltd

(AG2024/1077)

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 24 APRIL 2024

Application for termination of the Salisbury Private Nursing Home Pty Ltd Nurses Enterprise Agreement 2014

1. On 4 April 2024, Salisbury Private Nursing Home Pty Ltd made an application for the termination of the Salisbury Private Nursing Home Pty Ltd Nurses Enterprise Agreement 2014 (the Agreement), an enterprise agreement that had passed its nominal expiry date and termination had been agreed to pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

1. Sections 222 and 223 of the Act are relevant to this application and are as follows:

“222 Application for FWA 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 FWA 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 FWA considers it fair to extend that period—within such further period as FWA allows.

223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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.”

1. The Application was made within the timeframe required.

1. Attached to the application was a statutory declaration of Mahroo Askari, Executive Officer, which is relevantly summarised as follows:

·  The Agreements nominal expiry date was on 30 June 2018.

·  On 6 March 2024, all employees covered by the Agreement were provided a letter explaining the proposed termination and ballot information.

·  The Ballot was conducted on 14 March 2024.

·  Of the 17 employees covered by the Agreement, 8 cast a valid vote, all of whom voted in favour of the termination.

·  On 21 March 2024 the ballot concluded. The termination was agreed to.

1. On 16 April 2024, I issued Directions requiring the application and supporting documents be served on all employees and employee organisations covered by the Agreement, so that I could seek their views in accordance with s.223(d) of the Act. The employees and employee organisations were advised to contact my Chambers if they wished to express any views.

1. No employees or employee organisations covered by the Agreement contacted my Chambers. The Australian Nursing and Midwifery Federation (ANMF) who represent member employees covered by the Agreement did not express a view.

1. I am satisfied that the employer complied with subsection 220(2) of the Act by giving the affected employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. There are no other reasonable grounds for believing that the employees have not agreed to the termination.

1. I have considered the views of the employees, the ANMF and the employer and I am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met.

2. I am satisfied that it is appropriate to terminate the Agreement.

1. The termination will come into effect from 24 April 2024.

COMMISSIONER

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