The Frank Whiddon Masonic Homes Of New South Wales T/A The Whiddon Group

[2024] FWCA 1630

[2024] FWCA 1630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

The Frank Whiddon Masonic Homes Of New South Wales T/A The Whiddon Group

(AG2024/1313)

STAR AGED LIVING - RESIDENTIAL NURSES ENTERPRISE AGREEMENT 2017

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 7 MAY 2024

Application for termination of the Star Aged Living - Residential Nurses Enterprise Agreement 2017

1. An application has been made by The Frank Whiddon Masonic Homes of New South Wales T/A The Whiddon Group (the Applicant) for the termination of the Star Aged Living - Residential Nurses Enterprise Agreement 2017 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (FW Act). The application was filed on 18 April 2024. The nominal expiry date of the Agreement was 30 September 2020.

1. Sections 222 and 223 of the FW Act set out the conditions which must be met for an agreement to be terminated by agreement pursuant to s.222 of the FW Act:

“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.

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.”

Consideration

1. The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (Commission) on 23 February 2018.[1] It was approved to operate from 2 March 2018 with a nominal expiry date of 30 September 2020.

1. The Agreement covers the Australian Nursing and Midwifery Federation (ANMF). On 24 April 2024, the ANMF wrote to my chambers indicating they did not oppose the application.

1. Jacky Hopwood, Executive General Manager People and Culture from the Applicant filed a Form F24A Statutory Declaration. The Statutory Declaration included information outlining the steps taken by the employer to ensure that the employees covered by the Agreement were given a reasonable opportunity to decide whether they wanted to approve the termination and steps taken to notify all employees about the vote.

1. The Statutory Declaration also indicated that of the 108 staff covered by the Agreement, 64 cast a valid vote of which 60 voted to approve the termination.

1. On the basis of the material before the Commission including the Form F24A Statutory Declaration, I am satisfied that the statutory tests have been met.

1. The application to terminate the Agreement is approved and the termination will take effect from 26 May 2024.

1. I order accordingly.

COMMISSIONER

[1] [2018] FWCA 1176.

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