Wyndham Clinic Pty Ltd ATF Wyndham Clinic Unit Trust T/A Wyndham Clinic Private Hospital

[2015] FWCA 8640

[2015] FWCA 8640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Wyndham Clinic Pty Ltd ATF Wyndham Clinic Unit Trust T/A Wyndham Clinic Private Hospital
(AG2015/7581)

WYNDHAM CLINIC AND THE AUSTRALIAN NURSING FEDERATION NURSES ENTERPRISE AGREEMENT 2013

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 21 DECEMBER 2015

Application for termination of the Wyndham Clinic and the Australian Nursing Federation Nurses Enterprise Agreement 2013.

[1] Wyndham Clinic Pty Ltd ATF Wyndham Clinic Unit Trust trading as Wyndham Clinic Private Hospital (Wyndham Clinic, the Applicant) has made an application under section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the Wyndham Clinic and the Australian Nursing Federation Nurses Enterprise Agreement 2013 (the Agreement). The application was accompanied by a statutory declaration from Mr Peter Bailey, Chief Executive Officer of Wyndham Clinic, dated 4 December 2015.

[2] The statutory declaration outlined the process undertaken by the Applicant in relation to the vote of the employees. A memorandum was distributed to employees on 9 November 2015 advising them that a vote was to occur to terminate the Agreement so that they could be covered by the new Wyndham Clinic Nurses Enterprise Agreement 2015. Staff meetings were also held on 5 October 2015, 6 October 2015, 4 November 2015 and 5 November 2015. On the material before me, I am satisfied that the requirements of section 220(2) of the Act have been met.

[3] The statutory declaration provided evidence that a majority of the employees, who cast a valid vote, voted in favour of the termination of the Agreement. On the material before me, I am satisfied that, pursuant to section 221(1) of the Act, the employees were asked by the employer to approve the termination and that the termination of the Agreement was agreed to.

[4] The application was made by the Wyndham Clinic which is covered by the Agreement 1. The application was accompanied by a statutory declaration as required by section 222(3) of the Act.

[5] The statutory declaration, dated 4 December 2015, provided that the termination was agreed to on 24 November 2015. I am satisfied that the application was made within 14 days after the termination was agreed to. 2

[6] Section 223 of the Act sets out when the Fair Work Commission (the Commission) must approve an application to terminate 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.”

[7] As detailed above, I am satisfied that the employer complied with section 220(2) of the Act 3. I have also stated that I am satisfied that the termination was agreed to in accordance with section 221(1) of the Act4.

[8] There are no other reasonable grounds for believing that the employees have not agreed to the termination 5.

[9] The Australian Nursing Midwifery & Federation (ANMF) has advised the Commission that it does not oppose the application to terminate the Agreement 6. In addition, the ANMF filed a Form F18 in support of the application.

[10] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the Act, I must approve the termination of the Agreement.

[11] The termination of the Agreement will take effect on the date of this decision, 21 December 2015, pursuant to section 224 of the Act.

 1 Section 222(1), Fair Work Act 2009.

 2 Section 222(3), ibid.

 3   Section 223(a), ibid.

 4   Section 223(b), ibid.

 5   Section 223 (c), ibid.

 6   Section 223(d), ibid.

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