National Skin Cancer Centres T/A NSCC Holdings Pty Ltd

[2019] FWCA 6473

[2019] FWCA 6473

FAIR WORK COMMISSION

DECISION

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

National Skin Cancer Centres T/A NSCC Holdings Pty Ltd
(AG2019/3119)

STOKE ST FAMILY MEDICAL CENTRE EMPLOYEE COLLECTIVE AGREEMENT 2008

Industries not otherwise assigned
COMMISSIONER CIRKOVIC	MELBOURNE, 26 SEPTEMBER 2019

Application for termination of the Stoke St Family Medical Centre Employee Collective Agreement 2008.

[1] National Skin Cancer Centres T/A NSCC Holdings Pty Ltd made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Stoke St Family Medical Centre Employee Collective Agreement 2008 (the Agreement).

[1] The Agreement has a nominal expiry date of 16 June 2010. The Applicant filed a statutory declaration of Ms Sara Woodford declared 22 August 2019 (Statutory Declaration). I issued directions on 6 September 2019. The Applicant has complied with these directions.

Legislation

[2] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 is as follows:

“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;

(c) an employee organisation covered by the agreement.”

[3] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[4] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[5] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that “the Agreement is so old that the employees are better off under the Health Professionals and Support Services Award 2010” (the Award).

[6] In the circumstances, I am satisfied that it is not contrary to the public interest to terminate the Agreement pursuant to s.226(a) of the Act.

Views, Circumstances and Likely Effect of Termination

[7] There are no employee organisations covered by the Agreement. All three employees covered by the Agreement indicated by email their consent to the termination.

[8] The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that employees would be paid better under the Award and that the Applicant has been paying the employees these more beneficial rates in any case.

[9] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[10] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[11] An Order will be issued terminating the Agreement with effect from 26 September 2019.

COMMISSIONER

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