Stirling Hospital Inc. T/A Stirling Hospital

[2023] FWCA 1788

[2023] FWCA 1788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Stirling Hospital Inc. T/A Stirling Hospital

(AG2023/1630)

STIRLING HOSPITAL INC. CLERICAL ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 19 JUNE 2023

Application for termination of the Stirling Hospital Inc. Clerical Enterprise Agreement 2019

1. On 29 May 2023, Stirling Hospital Inc. T/A Stirling Hospital made an application for the termination of the Stirling Hospital Inc. Clerical Enterprise Agreement 2019 (the Agreement), an enterprise agreement that had passed its nominal expiry date, 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 Annette Nelson, Chief Executive Officer, which is relevantly summarised as follows:

·   The Agreement nominal expiry date was on 30 April 2023.

·   On 2 May 2023, all employees covered by the Agreement were provided with an information pack that, including an explanatory letter, and an Agreement and Award comparison document showing the relative benefits or otherwise between the two. The information pack included information on the voting process. These documents were attached to the Application.

·   On 9 May 2023, all employees were provided with an example template of letters of employment showing the benefits from the Agreement that will be retained if the Agreement is terminated. These documents were attached to the Application.

·   On 9 May 2023, all employees were invited to attend a meeting with management to ask any questions and/or raise any concerns regarding the termination. These meetings were held on 9 May 2023 and 11 May 2023. During these consultation sessions, employees were advised that they would be provided with a ballot paper to vote and notified of the location of the ballot box.

·   On 15 May 2023, voting on the termination of the Agreement commenced.

·   On 22 May 2023, the termination was agreed to. Of the 14 employees covered by the Agreement, 9 employees cast a valid vote and voted to approve the termination.

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. On 6 June 2023, 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.

1. I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.

1. The termination will come into effect from the date of this Decision.

COMMISSIONER

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