Dockvest Pty Ltd T/A Club Salamanca

[2018] FWCA 1259

[2018] FWCA 1259

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Dockvest Pty Ltd T/A Club Salamanca
(AG2018/681)

DOCKVEST PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 16 MARCH 2018

Application for termination of the Dockvest Pty Ltd Employee Collective Agreement 2009.

[1] On 27 February 2018, Dockvest Pty Ltd made an application under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Dockvest Pty Ltd Employee Collective Agreement 2009 (the Agreement). The nominal expiry date of the Agreement was 17 November 2014.

[2] The application was accompanied by a statutory declaration of Mrs Jessica MacIntosh, Head of People and Culture at Dockvest Pty Ltd.

[3] In this statutory declaration, Mrs MacIntosh states that upon termination of the Agreement, all relevant employees will be covered by the Fitness Industry Award 2010. Further, Mrs MacIntosh advises that, following a confidential online ballot conducted in February 2018, 91.4% of the employees who participated in the vote voted for the Agreement to be terminated.

[4] There are no unions covered by the Agreement.

[5] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.

[6] Chapter 2, Part 2-4, Division 7, Subdivision D is 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;

(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.”

[7] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[8] The termination of the Agreement is approved with effect from 16 March 2018.

COMMISSIONER

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