Chiropractic Works FNQ Pty Ltd T/A Chiropractic Works

[2019] FWCA 6683

[2019] FWCA 6683

FAIR WORK COMMISSION

decision

Fair Work Act 2009

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

Chiropractic Works FNQ Pty Ltd T/A Chiropractic Works

(AG2019/3523)

Chiropractic Works Employee Enterprise Agreement

Health and welfare services
Commissioner Hunt	BRISBANE, 4 october 2019

Application for termination of the Chiropractic Works Employee Enterprise Agreement.

1. On 17 September 2019 Chiropractic Works FNQ Pty Ltd T/A Chiropractic Works (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Chiropractic Works Employee Enterprise Agreement (the Agreement). The Agreement’s nominal expiry date was 15 October 2014.

1. The application was supported by a statutory declaration of Mr Nathan Bridge, Director of the Employer.  Mr Bridge declared that the Agreement originally covered a different employer entity, “Bridge Family Chiropractic Pty Ltd as trustee for The Bridge Family Trust” (Bridge Chiropractic), which is an associated entity of the Employer. 

1. On 1 July 2019 all employees of Bridge Chiropractic were transferred to the Employer.  The Employer performs the same work as Bridge Chiropractic and has the beneficial use of some or all of the assets of Bridge Chiropractic which related to, or are used in connection with the transferred work.  The Employer submits that there has been a transfer of employment for its employees pursuant to s.22 of the Act and a transfer of business from Bridge Chiropractic to the Employer pursuant to s.311 of the Act and consequently the Agreement covers the transferred employees.

1. Mr Bridge declared that any new employees of the Employer will be covered by the Health Professional and Support Services Award 2010 (the Award), and terminating the Agreement would prevent two different sets of terms and conditions of employment applying across the Employer’s enterprise.  

1. Mr Bridge declared that the Employer has 14 employees, all of whom support the termination of the Agreement.  The Employer submitted a copy of a vote that it conducted of its employees on 11 September 2019 regarding the proposed termination of the Agreement.  All 14 of the employees indicated that they were in favour of terminating the Agreement. 

1. On 24 September 2019 my Associate wrote to the Employer and asked whether the Employer might be willing to provide, on company letterhead, an assurance that the employees covered by the Agreement will retain their current rates of pay and conditions of employment following the termination of the Agreement.

1. On 25 September 2019 Mr Bridge sent to my chambers a document on the Employer’s letterhead which stated, “As requested, I am happy to provide an assurance that the employees covered by [the Agreement] will retain their current rates of pay and conditions of employment following termination of the Agreement”.   

1. Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

1. Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

1. Relevant to s.225(b)(ii) of the Act, the employees will continue to be paid their existing terms and conditions. Based on the material before me I am satisfied that the relevant employees support the termination of the Agreement.

1. In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

1. In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from today, 4 October 2019.

COMMISSIONER

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