Sapphire Aged Care Pty Ltd

[2018] FWCA 7616

[2018] FWCA 7616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Sapphire Aged Care Pty Ltd
(AG2018/3509)

SAPPHIRE AGED CARE PTY LTD ENTERPRISE AGREEMENT 2015

Aged care industry
COMMISSIONER CRIBB	MELBOURNE, 14 DECEMBER 2018

Application for termination of the Sapphire Aged Care Pty Ltd Enterprise Agreement 2015.

[1] Sapphire Care Pty Ltd (Sapphire Care, the Applicant), has made an application, under section 222 of the Fair Work Act 2009 (the Act), for approval to terminate the Sapphire Aged Care Pty Ltd Enterprise Agreement 2015 1 (the Agreement). The application was accompanied by a statutory declaration from Dr Julie Caldecott, Chair of the Board of Sapphire Care Pty Ltd, dated 31 July 2018.

[2] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) (the unions) are covered by the Agreement.

Legislative framework

[3] Sections 220, 222 and 223 of the Act, relevantly, set out the requirements for making an application to terminate an Agreement and also when the Fair Work Commission (the Commission) must approve the termination of an agreement.

[4] Section 220 provides 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.”

[5] Further, Section 222 provides as follows:

“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.”

[6] Finally, section 223 is as follows:

“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.”

[7] I will deal with each of these requirements, as relevant, in turn.

Considerations and conclusions

[8] The application has been made by Sapphire Care Pty Ltd which is the employer covered by the Agreement (section 222(1)). The application was accompanied by a statutory declaration as required by section 222(3).

[9] The statutory declaration from Dr Caldecott set out the process undertaken by Sapphire Care in relation to the proposed termination of the Agreement. The purpose of the termination of the Agreement is to bring all employees covered by the Agreement under the Blue Cross Community and Residential Care Services Group, ANMF and HSU Enterprise Agreement 2017 2 (the Blue Cross Agreement).

[10] In the statutory declaration, Dr Caldecott stated that, as part of the consultation process, employees were provided with access to a document which set out the differences between the Agreement and the Blue Cross Agreement. Further, consultation meetings were held across 10 different aged care sites during which there was discussion about hours of work, uniforms, pay increases, role differences across the two businesses and other questions raised by employees.

[11] A Frequently Asked Questions document was also provided to employees which explained various matters including employment with BlueCross, pay increases and hours of work. The document also notified employees of the dates, time, place and method of voting. The voting was conducted by an independent ballot provider, either electronically, or by using a self-addressed and stamped envelope.

[12] On the basis of the material before me, I am satisfied that Sapphire Care has complied with the requirements of section 220(2) of the Act. Accordingly, I am satisfied that the requirements of section 223(a) have been met.

[13] The statutory declaration also provided evidence that a majority of the employees who cast a valid vote approved the termination of the Agreement. On the material before me, I am satisfied that, pursuant to section 221(1) of the Act, the employees were asked by the employer to approve the termination and that the termination of the Agreement was agreed to (section 223(b)).

[14] In relation to the requirements of section 223(c), there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[15] The ANMF and the HSU have advised the Commission that they support the application to terminate the Agreement. A Memorandum of Understanding has been signed by Blue Cross Community Care Services Group Pty Ltd as Trustee for the Blue Cross Group Unit Trust, Blue Cross Community Care Services (Toorak) Pty Ltd as Trustee for the Darnlee Business Unit Trust, Third Age Australia Pty Ltd as Trustee for the Third Age Australia Unit Trust T/A BlueCross Community and Residential Care Services Group, the ANMF and the HSU in relation to the application which has been placed on the Fair Work Commission’s file.

[16] On the material before me, I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the Act, I must approve the termination of the Agreement.

[17] The termination of the Agreement will take effect from today’s date, namely 14 December 2018.

 1   AE413980

 2   AE425840

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<AE413980  PR703179>