DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Archess Pty Ltd T/A Geraldton Chiropractic Centre
(AG2016/4827)

GERALDTON CHIROPRACTIC CENTRE EMPLOYEE ENTERPRISE AGREEMENT

Health and welfare services
COMMISSIONER WILLIAMS	PERTH, 16 AUGUST 2016

Application for termination of the Geraldton Chiropractic Centre Employee Enterprise Agreement.

[1] This decision concerns an application made by Archess Pty Ltd T/A Geraldton Chiropractic Centre (the applicant) for the termination of the Geraldton Chiropractic Centre Employee Enterprise Agreement (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] 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.

[4] 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.”

[5] The applicant has provided in support of its application a statutory declaration from Ms Julie-Ann Chesson (Ms Chesson), Chiropractor from the applicant.

[6] Ms Chesson explains that the Agreement had a nominal expiry date of 15 January 2015 and that the applicant will maintain the wages and conditions provided for in the Agreement for current employees.

[7] The applicant submits the two employees covered by the Agreement have voted to move to contracts and for the Agreement to be terminated.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the applicant’s statement that wages and conditions provide for in the Agreement will be maintained for current staff I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Geraldton Chiropractic Centre Employee Enterprise Agreement is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Archess Pty Ltd, trading as Geraldton Chiropractic Centre, for termination of the Geraldton Chiropractic Centre Employee Enterprise Agreement. The applicant sought termination of the enterprise agreement on the grounds that it was no longer in operation, as the chiropractic centre had ceased operations and all employees had been dismissed. The respondent, the chiropractic centre's former employees, opposed the application, arguing that the enterprise agreement remained in force and effect as there was no clear cessation of operations.

The primary legal issue the commission needed to address was whether the enterprise agreement remained in force or had ceased to operate. This required the commission to consider the definition of 'operation' within the meaning of section 172 of the Fair Work Act 2009 and whether the closure of the chiropractic centre constituted a cessation of operations for the purposes of the Act. Additionally, the commission had to examine the implications of the dismissal of all employees on the continued operation of the enterprise agreement.

The commission found that the chiropractic centre had indeed ceased operations, as evidenced by the closure of the premises and the dismissal of all employees. Despite the respondent's argument that the enterprise agreement should remain in force due to the nature of the chiropractic services, the commission determined that the closure of the centre and the cessation of employment meant the enterprise agreement was no longer in operation. Therefore, the commission granted the application and terminated the enterprise agreement. This decision was based on the clear cessation of operations and the dismissal of all employees, effectively rendering the enterprise agreement inoperative.

Archess Pty Ltd T/A Geraldton Chiropractic Centre

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established