Gidsob Pty Ltd T/A Amcal Plus Night & Day Casuarina

[2021] FWCA 6509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Gidsob Pty Ltd T/A Amcal Plus Night & Day Casuarina
(AG2021/7869)

TROWER ROAD PHARMACY ENTERPRISE AGREEMENT 2009

Northern Territory
DEPUTY PRESIDENT ASBURY	BRISBANE, 2 NOVEMBER 2021

Application for termination of the Trower Road Pharmacy Enterprise Agreement 2009

[1] Gidsob Pty Ltd T/A Amcal Plus Night & Day Casuarina applies to terminate the Trower Road Pharmacy Enterprise Agreement 2009 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act). The Applicant seeks to terminate the Agreement and revert to the Pharmacy Industry Award 2020 (the Award).

[2] I have considered each of the matters contained in s.226 of the Act, and I am satisfied that the Agreement should be terminated. I accept the evidence of Mr Scott Harris, Director of Workplace Relations & Business Policy, Pharmacy Guild of Australia as set out in a Statutory Declaration filed in the Commission that the Agreement nominally expired over seven years ago and does not contain a number of provisions found in the Award.

[3] In particular I have had regard to the fact that the Agreement was made in 2009 prior to the operation of the Pharmacy Industry Award 2010. I have also had regard to the fact that the Agreement terms are less favourable than those in the Award and that if the Agreement is terminated the Award will apply to the benefit of employees. Further I have had regard to evidence of Mr Harris that a vote of employees was taken with 21 out of 25 employees covered by the Agreement voting in favour of terminating the agreement and reverting to the Award.

[4] The application does not specify a date upon which it seeks to have the termination of the Agreement take effect. Accordingly, the termination will come into effect from 2 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Gidsob Pty Ltd trading as Amcal Plus Night & Day Casuarina, sought the termination of the Trower Road Pharmacy Enterprise Agreement 2009. The application was made to the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009. The agreement in question governed the employment of pharmacy assistants at the pharmacy operated by the applicant.

The primary legal issue before the Commission was whether the conditions stipulated in section 231(1)(a) of the Act were met, which would permit the termination of the enterprise agreement. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and operational requirements. The Commission had to assess whether the changes were substantial enough to warrant the termination of the existing agreement.

The Commission found that the changes in the business environment and operational requirements were indeed significant. The changes included shifts in the pharmacy's operating model, technological advancements, and evolving market conditions, which rendered the existing agreement obsolete. The Commission concluded that the changes were substantial and justified the termination of the Trower Road Pharmacy Enterprise Agreement 2009, thereby granting the application.

The Fair Work Commission ordered the termination of the Trower Road Pharmacy Enterprise Agreement 2009, effective from the date of the decision. The Commission also directed that the termination would not result in any loss of redundancy or other entitlements for employees covered by the agreement, ensuring a fair transition for the affected workers.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established