Villa Maria Society

[2015] FWC 3851

[2015] FWC 3851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Villa Maria Society
(AG2015/2862)

VILLA MARIA SOCIETY, ANMF AND HSU ENTERPRISE AGREEMENT 2013

[AE408390]

Aged care industry
VICE PRESIDENT WATSON	MELBOURNE, 16 JUNE 2015

Application for termination of the Villa Maria Society, ANMF and HSU Enterprise Agreement 2013.

[1] This decision concerns an application made by Villa Maria Society on 1 June 2015 to terminate the Villa Maria Society, ANMF and HSU Enterprise Agreement 2013 (the Villa Maria Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for a hearing, by telephone, on 9 June 2015. Mr M. Rahilly appeared on behalf of Villa Maria Society with Mr L. Donohue and Ms J. Williams, Mr L. Hubbard appeared on behalf of the Australian Nursing and Midwifery Federation (ANMF) and Mr B. Tanoski appeared on behalf of the Health Services Union of Australia (HSU).

[3] After hearing submissions from the parties, I announced my decision that the requirements of the Act had been met and that the Villa Maria Agreement must be terminated.

The relevant legislation

[4] Section 223 of the Act states when the Fair Work Commission must approve a termination of an enterprise agreement:

“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.”

Submissions

[5] The application was accompanied by a statutory declaration signed by Ms L. Donohue, Senior Manager, People, Culture and Quality of Villa Maria Society, and dated 1 June 2015, which outlines the process undertaken by Villa Maria Society in relation to the employee vote.

[6] The circumstances are that all staff were advised by letter of agreement reached between their respective bargaining representatives and Villa Maria Society that, due to the merger between Villa Maria Society and Catholic Homes for the Elderly, which will take effect on 1 July 2015, it had been agreed that the Villa Maria Agreement would be terminated and they would, from that date, be covered by the Catholic Homes (Victoria) Residential Services Enterprise Agreement 2013-2017 (Catholic Homes Agreement). Prior to this, the ANMF conducted meetings of staff at all facilities to advise them about the proposal and staff passed resolutions in favour of the proposal.

[7] The statutory declaration specifies that the relevant employees were notified of the time and place at which the vote would occur and the method of voting on 11 May 2015. Voting commenced on 13 May 2015 and concluded on 25 May 2015. I am satisfied that the requirements of s.220(2) have been met as required by s.223(a).

[8] I am satisfied that the termination was agreed to in accordance with s.221(a) of the Act as required by s.223(b). The statutory declaration provides evidence that there are 455 employees who are covered by the Villa Maria Agreement, and 121 out of the 126 who cast a valid vote supported the termination of the Agreement.

[9] There are no other reasonable grounds for believing that the employees have not agreed to the termination (s.223(c)).

[10] The ANMF tendered a Memorandum of Understanding (MOU) signed on behalf of the ANMF, the HSU and Villa Maria/Catholic Homes and executed on 5 June 2015. The MOU concerns several issues that reflect differences between conditions in the Villa Maria Agreement and the Catholic Homes Agreement, in particular in relation to the medication endorsement allowance and parental leave. The MOU provides the following in relation to those issues:

“3. VMCH will extend the paid parental leave provisions currently in the Villa Maria Enterprise agreement to all residential aged care facility employees employed by the new entity (VMCH).

4. VMCH will pay the 4% medication endorsement allowance to all EN’s, who have the endorsement, on all shifts, irrespective of whether they actually administer medications.”

[11] The ANMF submits in all other material respects the Catholic Homes Enterprise Agreement provides wages and conditions that are equal to or more advantageous than those in the Villa Maria Agreement. Accordingly, provided the matters contained in the MOU are placed on the record and implemented, the ANMF has no objection to the termination of the Villa Maria Agreement. The HSU has no objection to the termination of the Agreement.

[12] The parties submit that the termination of the Villa Maria Agreement should take effect from the same date the merger of Villa Maria and Catholic Homes will take effect, 1 July 2015.

Conclusion

[13] As indicated earlier, I am satisfied that the requirements of the Act have been met and that the Villa Maria Society, ANMF and HSU Enterprise Agreement 2013 must be terminated. In accordance with s.224 of the Act, the termination will come into effect on 1 July 2015. An order to this effect is issued in conjunction with this decision (PR568125).

VICE PRESIDENT

Appearances:

Mr M. Rahilly, with Ms L. Donohue and Ms J. Williams for Villa Maria Society.

Mr L. Hubbard for ANMF.

Mr B. Tanoski for HSU.

Hearing details:

2015.

Melbourne - By Telephone.

9 June 2015.

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<Price code A, AE408390  PR568122 >