Gawler Animal Hospital Pty Ltd T/A Gawler Animal Hospital

[2022] FWCA 308

[2022] FWCA 308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Gawler Animal Hospital Pty Ltd T/A Gawler Animal Hospital

(AG2022/129)

Gawler South Small Animal Hospital Enterprise Agreement 2012

Animal care and veterinary services
COMMISSIONER PLATT	ADELAIDE, 4 FEBRUARY 2022

Application for termination of the Gawler South Small Animal Hospital Enterprise Agreement 2012

1. On 19 January 2022, Gawler Animal Hospital Pty Ltd T/A Gawler Animal Hospital (Gawler Animal Hospital or the Applicant) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Gawler South Small Animal Hospital Enterprise Agreement 2012 (the Agreement).

1. The Agreement has a nominal expiry date of 14 November 2016. The Agreement has now passed its nominal expiry date.

1. Section 226 of the Act states:

“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.”

1. On 20 January 2022, my Associate sent a Notice of Listing to the Applicant for a conference to be held on 2 February 2022. The Applicant was directed to make this Notice of Listing available to all employees covered by the agreement. On the Notice of Listing, it was noted that the employees were able to provide their views in respect of the Application by emailing my Chambers, or alternatively, by attending the conference on 2 February 2022.   

1. On 28 January 2022, I received written confirmation from the Applicant that all relevant employees were sent the Notice of Listing by email.

1. I have received no objections from any of the relevant employees by email. Two employees attended the conference on 2 February 2022 and raised certain issues that I will address later in this Decision.

1. I have considered the information provided in the application by Gawler Animal Hospital pursuant to section 225 of the Act. This includes the Statutory Declaration by Mr Stephen Crouch, Director of Gawler Animal Hospital, dated 19 January 2022. Mr Crouch makes the following submissions in relation to the approval of termination:

·   The Agreement passed its nominal expiry date more than five years ago, and the highest rates payable under the Agreement have been surpassed by the minimum rates required by the Animal Care and Veterinary Services Award 2020 (the Award).

·   The actual rates paid to employees are significantly higher than current Award rates and the Applicant has made assurances to employees that they will continue to be provided terms which are more beneficial than the Award.

1. Upon my further review of the Agreement, and further upon asking the two employees who attended the conference of their views, it was noted that certain conditions in the Agreement appeared to be more beneficial to employees than those contained in the Award. Accordingly, I sought further information from the Applicant as to how they would preserve those conditions upon termination. The Applicant provided the following undertakings:

“Persons who were covered by the Gawler South Small Animal Hospital Enterprise Agreement 2012 as at the 4^th February 2022 will not suffer any loss of pay as a result of the termination of the Enterprise Agreement.”

1. On the basis of these undertakings, I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

1. The undertakings outlined above shall remain in force unless agreement is reached to vary those terms and/or a new enterprise agreement which modifies those terms comes into effect.

1. A copy of this decision must be served by the Applicant upon all employees previously covered by the Agreement.

1. In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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