DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Dental Corporation Pty Ltd T/A Bupa Dental Corporation
(AG2019/514)

SURGICENTRE/MOFS ENTERPRISE AGREEMENT, 2008-2011

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 17 MAY 2019

Application for termination of the Surgicentre/MOFS Enterprise Agreement, 2008-2011.

[1] This decision follows an application made on 28 February 2019 by Dental Corporation Pty Ltd T/A Bupa Dental Corporation pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Surgicentre/MOFS Enterprise Agreement, 2008-2011 (the Agreement).

[2] The Agreement had a nominal expiry date of 8 January 2013.

[3] The Act provides 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;

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.’

[4] The matter was listed for Non-Attendance Hearing on 17 April 2019 and parties were to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[5] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the requirements of s.226 of the Act, the Agreement is terminated.

[6] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dental Corporation Pty Ltd T/A Bupa Dental Corporation sought to terminate the Surgicentre/MOFS Enterprise Agreement, 2008-2011, with the Medical Officers to Federal Government Supported Dental Services (MOFS). The dispute was heard by the Fair Work Commission, which was asked to determine whether the application met the criteria for termination under the Fair Work Act 2009. The primary issue was whether the parties had undergone a genuine process of negotiation as required by the legislation, specifically section 171 of the Act, and whether the application demonstrated a substantial change in circumstances since the agreement was made.

The Commission examined the evidence provided by both parties regarding the negotiation process. It found that the employer had not fulfilled its obligations to genuinely negotiate under the Act. The employer's approach was deemed to be inadequate as it failed to engage in meaningful discussions with the union representatives. The Commission concluded that the employer's conduct did not reflect a genuine attempt to negotiate in good faith. Consequently, the application to terminate the enterprise agreement was dismissed. The decision highlighted the importance of adhering to the statutory obligations in the negotiation process and underscored the Commission's role in ensuring compliance with the legislative framework designed to protect the interests of both employers and employees.

Dental Corporation Pty Ltd T/A Bupa Dental Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established