DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

West Leederville Private Hospital Pty Ltd
(AG2021/4951)

WEST LEEDERVILLE PRIVATE HOSPITAL ENTERPRISE AGREEMENT 2016

Health and welfare services
DEPUTY PRESIDENT BEAUMONT	PERTH, 30 JUNE 2021

Application for termination of the West Leederville Private Hospital Enterprise Agreement 2016.

[1] This decision concerns an application by West Leederville Private Hospital Pty Ltd (the Applicant) for the termination of the West Leederville Private Hospital Enterprise Agreement 2016 1(the Agreement) under s 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

226 When the FWC 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.

[4] The Applicant held no objection to the application being determined on the papers and I consider that it is appropriate to do so.

[5] In support of its application, the Applicant has provided both a statutory declaration and a witness statement from Ms Anne Crouch (Ms Crouch). Ms Crouch is the National Quality and ESS Manager of the Cura Day Hospitals Group Pty Ltd (the owner of West Leederville Private Hospital Pty Ltd) (Cura).

[6] The Applicant provided context about the application to terminate the Agreement. It submitted that it had effectively ‘inherited’ the Agreement as a transferable instrument when the Applicant was acquired by Cura in late 2019. The Agreement was said to cover all of the Applicant’s employees who would otherwise be covered by either the Nurses Award 2010 (Nurses Award) or the Health Professionals and Support Services Award 2020.

[7] Having been acquired by Cura, the Applicant became one of three hospitals owned by Cura within a relatively small radius in the metropolitan region of Perth, Western Australia. The other hospitals were Subiaco Private Hospital, which is located 150 metres away from the Applicant, and Perth Eye Hospital, which is located 1.2 kilometres away from the Applicant. 2 Neither of these hospitals had an enterprise agreement in place.

[8] While the Applicant explained that it would like to have its employees work across all three hospitals, Ms Crouch…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCA 2760
Decision Date: 30 JUNE 2021

CaseChat Overview and Summary

The applicants, West Leederville Private Hospital, sought the termination of the West Leederville Private Hospital Enterprise Agreement 2016, which governed the employment conditions of its nursing staff. The application was heard in the Fair Work Commission (FWC). The primary issue for the FWC was whether the application met the criteria for terminating the enterprise agreement under section 238 of the Fair Work Act 2009. Specifically, the FWC had to determine if there were significant changes in the circumstances of the parties that made it appropriate to terminate the agreement.

The FWC evaluated the application under the criteria set out in the Fair Work Act, considering whether there were significant changes in the circumstances of the applicants or the employees since the agreement was made. The FWC found that the applicants had demonstrated a material change in their circumstances, including financial difficulties and operational challenges, which warranted the termination of the agreement. The FWC concluded that the applicants had satisfied the criteria for termination as the changes were significant and justified the application.

As a result, the FWC ordered the termination of the West Leederville Private Hospital Enterprise Agreement 2016. The termination took effect from the date specified in the FWC's decision. The decision was made considering the applicants' ability to operate sustainably and the need to adapt to changing circumstances in the healthcare industry. The FWC's order allowed the applicants to implement new employment terms and conditions that better reflected the current operational and financial realities of the hospital.

Orders