UnitingCare Wesley Bowden Incorporated

[2015] FWCA 7733

[2015] FWCA 7733

The attached decision replaces the document signed on 9 November 2015 with the code [2015] FWC 7655.

This re-file is to address a reference number error only.

Luke Johanson

Associate to Commissioner Hampton

Dated12 November 2015

[2015] FWCA 7733

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

UnitingCare Wesley Bowden Incorporated
(AG2015/5672)

UNITINGCARE WESLEY BOWDEN INC NURSING EMPLOYEES ANF (AGED CARE) WORKPLACE AGREEMENT 2007

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 9 NOVEMBER 2015

Application for termination of the UnitingCare Wesley Bowden Inc Nursing Employees ANF (Aged Care) Workplace Agreement 2007.

[1] This decision concerns an application by UnitingCare Wesley Bowden Incorporated pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s 225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the UnitingCare Wesley Bowden Inc Nursing Employees ANF (Aged Care) Workplace Agreement 2007. 1

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiry date of 31 January 2009.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by the FWC
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the FW Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.

226 When FWA must terminate an enterprise agreement

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] The Commission has been advised that: 3

● UnitingCare Wesley Bowden has not managed or owned Nursing Homes since 2010;

● UnitingCare Wesley Bowden no longer employs nurses who would otherwise be covered by this Agreement; and

● The termination of the Agreement would not impact any staff currently employed by UnitingCare Wesley Bowden.

[6] The Australian Nursing and Midwifery Federation in covered by the Agreement and has advised the Commission is does not object to the termination and did not wish to be heard on the matter.

[7] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the parties.

[8] The termination will take effect from midnight on Monday 9 November 2015.

COMMISSIONER

 1   The Agreement was originally approved pursuant to the Workplace Relations Act 2006.

 2 Item 2(5)(c)(i) of Schedule 3.

 3   Correspondence dated 28 October 2015.

Printed by authority of the Commonwealth Government Printer

<Price code A, AC305094  PR573809>