Dr Shaw Medical Pty Ltd T/A Peninsula Skin Cancer Centre

[2015] FWCA 4966

[2015] FWCA 4966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Dr Shaw Medical Pty Ltd T/A Peninsula Skin Cancer Centre
(AG2015/3861)

PENINSULA SKIN CANCER CENTRE ENTERPRISE AGREEMENT 2014

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 21 JULY 2015

Application for termination of the Peninsula Skin Cancer Centre Enterprise Agreement 2014.

[1] Dr Shaw Medical Pty Ltd T/A Peninsula Skin Cancer Centre (Peninsula Skin Cancer Centre, the Applicant) has made an application, under section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the Peninsula Skin Cancer Centre Enterprise Agreement 2014 1 (the Agreement). The application was accompanied by a statutory declaration from Ms Amie Wagenaar, Practice Manager with Peninsula Skin Cancer Centre, dated 3 July 2015.

[2] The statutory declaration outlined the process taken by the Applicant in relation to the vote of the employees. A meeting was held with employees to discuss the possibility of terminating the Agreement on 12 June 2015. On 18 June 2015, employees were notified by email that a ballot was to be held on 2 July 2015 in relation to termination of the Agreement. On 2 July 2015, of the 36 employees covered by the Agreement, 26 employees cast a valid vote and all of those 26 employees voted to terminate the Agreement.

[3] Additional information was provided, on 13 July 2015, by the Applicant’s representative, which indicated that the Applicant has been sold to a large organisation which requires its employees to be on a contract. The representative was instructed by the employees to attend and provide advice in relation to the pros and cons of terminating the Agreement and entering into individual contracts. Each employee was provided with a copy of the new Employment Contract. Each Employment Contract will be governed by the applicable modern award. The employees have also had direct discussions with the new employer in relation to their individual Employment Contracts.

[4] On the material before me, I am satisfied that the requirements of section 220(2) of the Act have been met.

[5] The statutory declaration provided evidence that 26 of the 36 employees covered by the Agreement cast a valid vote approving the termination of the Agreement. On the material before me, I am satisfied that, pursuant to section 221(1) of the Act, the employees were asked by the employer to approve the termination and that the termination of the Agreement was agreed to.

[6] The application was made by Dr Shaw Medical Pty Ltd T/A Peninsula Skin Cancer Centre who are covered by the Agreement (section 222(1)).

[7] The application was accompanied by a statutory declaration as required by section 222(3). The statutory declaration provided that the termination was agreed to on 2 July 2015. As the application was lodged on 6 July 2015, I am satisfied that the application was made within 14 days after the termination was agreed to (section 222(3)).

[8] Section 223 of the Act sets out when the Fair Work Commission (the Commission) must approve an agreement:

“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.”

[9] As detailed above, I am satisfied that the employer has complied with section 220(2) of the Act (section 223(a)). I have also stated that I am satisfied that the termination was agreed to in accordance with section 221(1) of the Act (section 223(b)).

[10] There are no other reasonable grounds for believing that the employees have not agreed to the termination (section 223(c)).

[11] On the material before me, I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 the Act, I must approve the termination of the Agreement.

[12] The termination of the Agreement will take effect from the date of this decision, in accordance with s.224 of the Act.

 1   AE410440

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