DECISION

Fair Work Act 2009
s.225—Enterprise agreement

M & D Sports Pty Ltd T/A Oceana Aquatic & Fitness
(AG2017/1463)

Tasmania
COMMISSIONER LEE	MELBOURNE, 8 JUNE 2017

Application for termination of the Oceana Health and Fitness Employee Collective Agreement 2007 - 2012.

[1] An application has been made by M & D Sports Pty Ltd T/A Oceana Aquatic & Fitness (the Applicant) to terminate the Oceana Health and Fitness Employee Collective Agreement 2007 - 2012 1 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement has a nominal expiry date of 7 November 2012.

[3] The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

[4] This application was lodged with the Fair Work Commission (the Commission) on 27 April 2017. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer, the effect of the termination of the employer and employees and matters which make the termination of the Agreement not contrary to public interest.

[5] On 16 May 2017 my chambers wrote to the Applicant setting out the requirements of the legislation and directed the Applicant to take the following action to enable me to obtain information on the views and circumstances of employees.

“The views and circumstances of employees are to be obtained by the employer immediately forwarding or handing to employee and posting on relevant notice boards the following notice;

An application has been made by the employer to terminate the Oceana Health and Fitness Employee Collective Agreement 2007 – 2012 (The agreement).

The matter has been allocated to Commissioner Lee of the Fair Work Commission for determination.

If the application to terminate the agreement is successful, your minimum employment entitlements will be regulated by the applicable modern award. Your employer has advised the Commission that the applicable modern award is the Fitness Industry Award 2010.

This may have an effect on your terms and conditions of employment.

Commissioner Lee, when determining whether to terminate the agreement, is required to take into account the views of employees covered by the agreement.

If you have any views about the application to terminate the agreement, please advise the Commissioner by email at [email protected] or by calling (03) 8656 4534.

Views are to be provided to the Fair Work Commission by close of business Tuesday 23 May 2017.

(Note: If you require any information or advice as to what modern award would cover you, you can contact the Fair Work Ombudsman for information at

[6] Once this course of action was followed, I directed the Applicant to provide a statutory declaration, containing advice as to how and when the notice was distributed to employees.

[7] The Applicant provided a statutory declaration dated 31 May 2017 outlining that Ms Leeanne Albert, Administration Manager for the Applicant had informed all employees of the Applicant of the application via their personal emails and by posting the information on notice boards in the Reception, Swim School and Gym staff rooms with a copy of the Fitness Industry Award 2010.

[8] My Chambers has not received any emails or any phone calls from any employee of the Applicant expressing any view about the application to terminate the agreement.

The law to be applied

[9] Section 225 of the Act provides:

“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;”

[10] Section 226 of the Act provides:

“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.”

[11] The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s.225(a) of the Act.

[12] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied, in accordance with s.226(a) of the Act, that it is not contrary to the public interest to terminate the Agreement.

[13] In considering whether it is appropriate to terminate the Agreement, I have sought the views of the employees, considered the views of the employer and considered the circumstances, including the likely effect the termination will have on each of them.

[14] The Applicant submitted that the applicable modern award is the Fitness Industry Award 2010. The rates of pay and penalties provided in the Agreement are inferior to those provided in the applicable modern award. I am satisfied that employees would not be better off overall under the Agreement.

[15] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

[16] I am satisfied that it is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[17] The termination will come into effect from 8 June 2017.

COMMISSIONER

1 AC310760

Printed by authority of the Commonwealth Government Printer

M & D Sports Pty Ltd T/A Oceana Aquatic & Fitness

[2017] FWCA 3067

8 JUNE 2017

DECISION