DL Dentistry Pty Ltd AFT Laskey Dental Trust T/A Mornington Peninsula Dental Clinic
[2023] FWCA 1256
•8 MAY 2023
| [2023] FWCA 1256 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
DL Dentistry Pty Ltd AFT Laskey Dental Trust T/A Mornington Peninsula Dental Clinic
(AG2023/1239)
MORNINGTON PENINSULA DENTAL CLINIC PTY LTD ENTERPRISE AGREEMENT 2018
| Health and welfare services | |
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 8 MAY 2023 |
Application for termination of the Mornington Peninsula Dental Clinic Pty Ltd Enterprise Agreement 2018
On 5 May 2023, DL Dentistry Pty Ltd AFT Laskey Dental Trust T/A Mornington Peninsula Dental Clinic (DL Dentistry) filed an application (Application) for termination of the Mornington Peninsula Dental Clinic Pty Ltd Enterprise Agreement 2018 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act).The Agreement is a single enterprise agreement which nominally expired on 16 April 2022.[1] The Agreement is expressed to cover DL Dentistry and its employees engaged in the classifications contained in the Agreement.[2]
The Application was accompanied by a Form F24A – Declaration in support of termination of an enterprise agreement (Form F24A) made by Mr Peter Andrew King, Chief Operating Officer.
Legislation
The Act relevantly provides as follows:
“222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
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.
224 When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”
Consideration
Section 222
I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by DL Dentistry, a person covered by the Agreement. Further, it was accompanied by the material required by the Fair Work Commission Rules 2013, being made by Form F24 and accompanied by a Form F24A declaration setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.
Section 222(3) sets out the timeframe within which an application must be made. In its Form F24 DL Dentistry stated the termination was agreed to on 27 April 2023, the Application was lodged on 5 May 2023, which is within the 14 day timeframe stipulated in s.222(3)(a) of the Act.
Section 223
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.
Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)
The employer must take all reasonable steps to notify the employees of the time and date of the vote, the voting method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).
In the Form F24A Mr King declared the following steps were taken in respect of s.220(2)(a):
i.On 6 April 2023 a memo was sent to all employees notifying them of the date and method of voting, being the 26 April 2023, via Google Form, online.
ii.On 24 April 2023 signage was placed in the staff area reminding staff when and how to vote.
DL Dentistry submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(a).
Mr King also declared in the Form F24A that the following steps were taken in respect of s.220(2)(b):
i.A memo was sent to all employees, on 6 April 2023, explaining the proposal to terminate the Agreement and notifying staff of the timing of an all staff meeting and voting, along with welcoming feedback or queries about the proposal.
ii.On 13 April 2023 an all staff meeting was held, providing an opportunity for staff to ask any questions about the proposal including what changes might arise.
DL Dentistry submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(b).
The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)
The Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
In the Form F24A, Mr King declared that voting commenced on 26 April 2023 and ended on 27 April 2023, that 27 employees are covered by the Agreement, that 20 employees cast a valid vote and that 20 employees voted to approve the termination of the Agreement. As such, the termination was agreed to on 27 April 2023.
Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).
There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.
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 – s.223(d)
As outlined above, the Agreement is expressed to cover DL Dentistry and its employees engaged in the classifications contained in the Agreement.[3] As it does not cover any employee organisation, there are no views to take into account pursuant to s.223(d).
Conclusion
Based on the material contained in the declaration made by Mr King, I am satisfied that DL Dentistry has complied with the requirements in s.220(2) of the Act. I observe the Application has been made in accordance with the requirements in s.222. I am also satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination.
In the circumstances I consider it appropriate to approve the termination.
The termination will operate from 8 May 2023.
An order giving effect to this decision is separately issued in PR761629.
DEPUTY PRESIDENT
[1] AE502857 at clause 3.
[2] Ibid at clause 1.
[3] Ibid.
Printed by authority of the Commonwealth Government Printer
<AE502857 PR761573>
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