Dental Corporation Pty Ltd T/A Gerber Dental Group
[2021] FWC 6227
•28 OCTOBER 2021
[2021] FWC 6227
The attached document replaces the document previously issued with the above code on 28 October 2021.
The Agreement title has been amended throughout the document.
Associate to Commissioner Johns
Dated 28 October 2021
| [2021] FWC 6227 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Dental Corporation Pty Ltd T/A Gerber Dental Group
(AG2021/7577)
GERBER DENTAL PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2008
Health and welfare services | |
COMMISSIONER JOHNS | MELBOURNE, 28 OCTOBER 2021 |
Application for termination of the Gerber Dental Pty Ltd Employee Collective Agreement 2008
[1] This decision concerns an application by Dental Corporation Pty Ltd T/A Gerber Dental Group (Applicant), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (Act).
[2] The application seeks to terminate the Gerber Dental Pty Ltd Employee Collective Agreement 2008 (Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act.
Background
[3] The application was lodged with the Fair Work Commission (Commission) on 23 September 2021. In support of the application a declaration was filed by Rogan McMahon Head of Workplace Relations Strategic Projects A&NZ of Bupa ANZ (Declaration). The Declaration outlined the background to the application, the public interest in terminating the Agreement and the steps the Applicant took to ensure the views of affected employees were taken into consideration and what the likely effect of the termination of the Agreement would be on the employees.
[4] The Declaration stated that:
● “The Agreement is outdated and antiquated, the majority of terms having been surpassed by the terms of the Health Professionals and Support Services Award 2020 (Award) that would otherwise apply to the employees.
● Unlike the Agreement, the Award provides:
a) a higher minimum rate of pay;
b) a more beneficial spread of hours;
c) penalty rates for Saturday shifts;
d) payment of overtime for hours worked in excess of an employee’s contracted hours; and,
e) annual leave loading, which is provided for in the Award.
● A number of terms of the Agreement have fallen below the National Employment Standards (NES) including:
a. Agreement does not provide for payment of all public holidays where an employee would ordinarily have worked on the day the public holiday falls due.
b. Some roles are required to provide a longer notice period on resignation under the Agreement than what is required under the FW Act
c. The Agreement contains redundancy pay entitlements that fall below those contained in s119 of the FW Act.
● The termination of the Agreement will assist in operational consistency and simplicity; apart from those covered under the Agreement, the vast majority of the Applicant’s workforce (several thousand employees) are covered by the Award. Termination of the agreement will ensure consistency of entitlements and administrative efficiency.
…
● The Applicant submits that the termination of the Agreement will ensure that those Employees covered by the Agreement are afforded the beneficial terms of the Award.
● While paying entitlements in-line with the Award will increase staff costs for the Applicant, the termination of the Agreement will reduce the administrative burden of managing the instrument. This is because it will result in the majority of Dental Corporation Pty Ltd employees being covered by the Award, and therefore remove the need to administer an Agreement covering a small group of employees (approx. 10 employees).”
Relevant legislation
[5] The Commission must give consideration to the following legislation to determine whether it is viable to terminate the Agreement.
[6] Item 16 of Schedule 3 of the Transitional Act provides:
16 Collective agreement-based transitional instruments: termination by FWA
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”
[7] Subdivision D of Division 7 of Part 2-4 of the Act states
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
[8] On the basis of the material before it, the Commission is satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act). Further, in accordance with section 226(b) of the Act, the Commission has considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.
[9] Therefore, in accordance with section 226 of the Act, the Commission must terminate the Agreement. The application to terminate the Agreement is approved.
[10] The termination will take effect from the date of this decision, 28 October 2021.
COMMISSIONER
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