Hallett Cove Veterinary Surgery Pty Ltd

[2013] FWCA 667

[2013] FWCA 667

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Hallett Cove Veterinary Surgery Pty Ltd
(AG2012/9574)

HALLETT COVE VETERINARY SURGERY PTY LTD VETERINARY STAFF EMPLOYEE COLLECTIVE WORKPLACE AGREEMENT 2007

Animal care and veterinary services
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 30 JANUARY 2013

Application for approval of the Application for termination of the Hallett Cove Veterinary Surgery Pty Ltd Veterinary Staff Employee Collective Workplace Agreement 2007.

[1] Hallett Cove Veterinary Surgery Pty Ltd (the Company) has made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the Act) to terminate the Hallett Cove Veterinary Surgery Pty Ltd Veterinary Staff Employee Collective Workplace Agreement 2007 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 1 January 2010 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] At the time the application was made, s.226 of the Act provided:

“When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

Section 226 has subsequently been amended to refer to the Fair Work Commission (the Commission) rather than Fair Work Australia. 2

[4] Item 16 of Schedule 3 of the Transitional Act provides, so far as presently relevant, that:

“Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.”

[5] The application to terminate the Agreement was lodged on 4 July 2012. A director of the Company, Dr Robyn Sharp, subsequently provided further information in regard to the application.

[6] The Agreement covers the Company and its employees employed in occupations covered by Clause D.1 of the Agreement. There are no employee organisations covered by the Agreement. In her correspondence, Dr Sharp indicated that the result of terminating the Agreement would be that the Animal Care and Veterinary Services Award 2010 3(the Modern Award) would apply to the employees currently covered by the Agreement.

[7] On balance the terms of the Modern Award appear to be at least as favourable for employees as those of the Agreement. Employees are therefore likely to be no worse off if the Agreement is terminated. Dr Sharp provided the Commission with a document signed by the Company’s five employees, indicating that they agree to the termination of the Agreement. Dr Sharp has also advised that there will not be any significant adverse effects upon the Company.

[8] On the available material, it may be concluded that the termination of the Agreement would not be contrary to the public interest.

[9] In all the circumstances, I am satisfied that the requirements of s.226 of the Act relevant to this application have been met. The application is approved and, in accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

 1 AC305517.

 2   Fair Work Amendment Act 2012 (Cth) sch. 9, items 198-199.

 3   MA000118.

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<Price code A, AC305517  PR533626>