WorkPac HSC Staffing No. 1 Pty Ltd T/A WorkPac Group

[2022] FWCA 2651

[2022] FWCA 2651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

WorkPac HSC Staffing No. 1 Pty Ltd T/A WorkPac Group

(AG2022/3221)

WorkPac Pty Ltd National Healthcare Enterprise Agreement 2014

Aged care industry
COMMISSIONER SIMPSON	BRISBANE, 4 AUGUST 2022

Application for termination of the WorkPac Pty Ltd National Healthcare Enterprise Agreement 2014

1. WorkPac HSC Staffing No. 1 Pty Ltd T/A WorkPac Group (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the WorkPac Pty Ltd National Healthcare Enterprise Agreement 2014 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement and its nominal expiry date was 6 December 2018.

1. The Agreement was originally made under WorkPac Pty Ltd and its subsidiaries. A variation application was made in 2016 where the Agreement covered WorkPac Healthcare Pty Ltd (ABN: 23 130 095 135) per clause 1.2.1 of Agreement. In or around 2020 WorkPac Healthcare Pty Ltd had a name change and became Workpac HSC Staffing No. 1 Pty Ltd however it retained the same Australian Business Number of WorkPac HealthCare Pty Ltd (ABN: 23 130 095 135).

1. The relevant provisions of the Act are as follows:

“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 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.

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.”

1. A statutory declaration of Patrick Hill (Mr Hill), Senior Employment Relations Advisor, declared on 2 August 2022, was filed in the Fair Work Commission with the application. The Fair Work Commission is advised that no employees are covered by the Agreement.

1. Mr Hill submitted that termination of the Agreement is not contrary to the public interest for the following reasons:

1. The nominal expiry date of the Agreement was 6 December 2018 which is a number of years ago;
2. The Employer has no employees engaged under the Agreement; and
3. There has been no bargaining for the renegotiation of the Agreement.

1. Mr Hill further submitted that in respect of any future employees, the termination of the Agreement doesn’t preclude the creation of a future Agreement and proper industrial standards and a safety net are provided for in the form of the Nurses Award 2020 or the Aged Care Award 2010 or the Health Professionals and Support Services Award 2020 or any other modern Award and the operation of the National Employment Standards as prescribed by the Fair Work Act.

1. Having regard to the requirements of s.226 of the Act and on the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

1. I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the agreement shall operate from the date of this decision.

COMMISSIONER

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