DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Elaine Unsworth T/A Blooms The Chemist Lismore Pty Ltd
(AG2019/3244)

COMMUNITY PHARMACY SINGLE ENTERPRISE AGREEMENT (NSW) PHARMACY ASSISTANTS EMPLOYED BY PHARMACY MANAGEMENT (LISMORE) PTY LTD

Pharmacy operations
DEPUTY PRESIDENT CROSS	SYDNEY, 1 OCTOBER 2019

Application for termination of the Community Pharmacy Single Enterprise Agreement (NSW) Pharmacy Assistants employed by Pharmacy Management (Lismore) Pty Ltd.

[1] On 1 September, 2019, Elaine Unsworth T/A Blooms The Chemist Lismore Pty Ltd applied for the termination of the Community Pharmacy Single Enterprise Agreement (NSW) Pharmacy Assistants employed by Pharmacy Management (Lismore) Pty Ltd (the “Agreement”), under s.225 of the Fair Work Act 2009 (Cth) (the “Act”).

[2] The application pursuant to s.225 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;

[3] The Applicant is an employer covered by the Agreement and therefore has standing to make the termination application. The Agreement passed its nominal expiry date of 20 February 2014.

[4] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

“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.”

[5] The Applicant’s Statutory Declaration by Ms Elaine Unsworth states that 22 employees are covered by the Agreement.

[6] On 18 September 2019, I issued Directions from my Chambers in the following terms:

“On 1 September, 2019, an application was made by Elaine Unsworth T/A Blooms The Chemist Lismore Pty Ltd to terminate the Pharmacy Management Lismore Pty Ltd T/A Blooms The Chemist Lismore Enterprise Agreement after its nominal expiry date of 20 February, 2014.

Pursuant to ss.226(b)(i) and 226(b)(ii) of the Fair Work Act 2009 (Cth) (the ‘Act’), if an application for termination of an enterprise agreement after its nominal expiry date is made under s.225 of the Act, the Commission must take into account:

The view of the employees who would be affected by the orders, and;

The circumstances of those employees, including the likely effect that the termination

will have on each of them.

As such, the Commission invites any employees who would be affected by the orders for any views they may wish to express.

The employer is required to make available to all affected employees a copy of these Directions and advise the Commission on how this has been achieved by no later than 4.00pm on Thursday, 26 September 2019.

The views, if any, of employees who would be affected by the orders are required to be provided in writing to my Chambers, via e-mail, on chambers.cross.dp@fwc.gov.au by no later than 4.00pm on Friday, 27 September 2019.”

[7] On 27 September 2019, my Chambers received the following correspondence:

“In response to your letter with above notice of “Directions” – the notice has been made available to all staff of Blooms the Chemist Lismore. It was posted on staff noticeboard and/or emailed to those not working . All staff have confirmed that they are happy for the EBA to be dissolved and the Pharmacy Industry award to be initiated going forward. Regards Elaine Unsworth – Blooms the Chemist Lismore.”

[8] The termination of this Agreement is not contrary to the public interest.

[9] Pursuant to s.225 of the Act, and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[10] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this matter are Elaine Unsworth trading as Blooms The Chemist Lismore Pty Ltd and Pharmacy Management (Lismore) Pty Ltd. The dispute centres on an application to terminate the Community Pharmacy Single Enterprise Agreement (NSW) that governs the employment of pharmacy assistants by Pharmacy Management (Lismore) Pty Ltd. The case was heard in the Fair Work Commission. The legal issues before the Commission included whether the application for termination of the enterprise agreement met the statutory requirements and whether the application was made for an "appropriate purpose" under the Fair Work Act 2009. The Commission had to consider the procedural fairness of the application process, the justification for the termination, and the impact on the employees.

The Fair Work Commission examined the application's adherence to the statutory requirements and whether it was made for an appropriate purpose. The Commission found that the application was procedurally fair and that the employer had provided adequate reasons for the termination. The employer argued that changes in the business environment, including financial pressures and operational challenges, necessitated the termination of the agreement. The Commission accepted that the employer's circumstances had significantly changed, warranting a review of the existing agreement. Additionally, the Commission noted that the employer had attempted to negotiate changes with the employees' representatives but had been unsuccessful, leading to the application for termination.

In reaching its decision, the Fair Work Commission considered the employer's evidence and the arguments presented by both parties. The Commission concluded that the application for termination was justified and that the employer had demonstrated that the changes in its business environment were significant and warranted a re-evaluation of the enterprise agreement. The Commission also found that the application was made for an appropriate purpose, as the employer sought to address the financial and operational challenges affecting its business. The Commission accepted that the termination of the agreement was necessary to enable the employer to adapt to the new circumstances and to ensure the viability of its business.

The Fair Work Commission ordered that the Community Pharmacy Single Enterprise Agreement (NSW) cease to apply from a specified date. This decision allows the employer to implement its proposed changes and to negotiate a new agreement with the employees' representatives. The Commission's decision reflects a balanced approach, recognising the employer's need to adapt to changing circumstances while also considering the interests of the employees.

Elaine Unsworth T/A Blooms The Chemist Lismore Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established