Western Health T/A Western Health

[2022] FWCA 2865

[2022] FWCA 2865

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Western Health T/A Western Health

(AG2022/3135)

Western Health (Staff Specialist Anaesthetists) Certified Agreement 2006 - 2009

Health and welfare services
COMMISSIONER WILSON	MELBOURNE, 22 August 2022

Application for termination of the Western Health (Staff Specialist Anaesthetists) Certified Agreement 2006

1. A joint application by Western Health and by two anaesthetists employed by Western Health (the parties) has been made pursuant to Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Western Health (Staff Specialist Anaesthetists) Certified Agreement 2006 (the Agreement).  The Agreement was operative as of the beginning of the first full pay period on or after 19 April 2006 and the nominal expiry date of the Agreement was three years from that date.

1. Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 states:

   15 Collective agreement-based transitional instruments: termination by agreement

   Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) 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.

1. Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) sets out the specific requirements that must be met in relation to the termination of an enterprise agreement by employers and employees.

1. Ms Debra Hill provided a statutory declaration attesting to the process undertaken by the Employer when requesting that the Agreement be terminated including the explanation provided by the Employer to the employees covered by the Agreement and details of the ballot process and results.

1. Upon request by my Chambers, the Applicants’ solicitors jointly provided submissions on the public interest of the termination, whether the views of employee organisations covered by the Agreement had been sought, and the circumstances of the employees covered by the Agreement.

1. Termination of the Agreement was one of several outcomes agreed by the parties following extensive conciliation before me in 2020 and 2021.  At the request of the parties a Recommendation was issued by me on 28 June 2021  dealing with a number of matters that were highly significant matters for the affected employees.  I acknowledge and am grateful for the assistance to the Commission from the parties and their respective legal advisers: Moray & Agnew led by Nick Duggal, for the anaesthetists and Mills Oakley, led by Ross Levin, for Western Health, for their very constructive approach to resolution of the dispute.

1. Based on the material before me, I am satisfied that the Employer fulfilled the requirements of s.220 of the  Act, that a majority of employees balloted approved the termination as required by s.221(1) of the  Act, that there are no other reasonable grounds for believing that the employees have not agreed to the termination and that it is appropriate and is not contrary to the public interest to terminate the Agreement.

1. The termination of the Agreement is approved with effect from 22 August 2022.

COMMISSIONER

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