Nelron Pty Ltd T/A O’Loughlin’s Medical Pharmacy

[2023] FWCA 9

[2023] FWCA 9

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Nelron Pty Ltd T/A O’Loughlin’s Medical Pharmacy

(AG2022/4825)

O’LOUGHLIN’S MEDICAL PHARMACY ST IVES EMPLOYEE COLLECTIVE AGREEMENT 2009 (PHARMACY ASSISTANTS EMPLOYED BY NELRON PTY LTD)

Pharmacy operations
DEPUTY PRESIDENT EASTON	SYDNEY, 3 JANUARY 2023

Application for termination of the O’Loughlin’s Medical Pharmacy St Ives Employee Collective Agreement 2009.

1. Nelron Pty Ltd T/A O’Loughlin’s Medical Pharmacy (Nelron) made an application for the termination of the O'Loughlin's Medical Pharmacy St Ives Employee Collective Agreement 2009 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover pharmacy employees, meaning pharmacy assistants working in all aspects of the pharmacy including performing some work in the storeroom/warehouse/office and drivers who also perform work as pharmacy assistants in the pharmacy however excludes those who do not work in the pharmacy such as those exclusively working in the warehouse and clerical office staff.

1. Sections 225 of the Act, and 226 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide:

“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.

226      Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)   the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)   all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)    This subsection covers a termination of the employment of an employee:

(a)   at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)   because of the insolvency or bankruptcy of the employer.

(3)    In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)   the employees (unless there are no employees covered by the agreement);

(b)   each employer;

(c)   each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)    In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)   whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)   whether bargaining for the proposed enterprise agreement is occurring; and

(c)   whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)    In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The application was accompanied by a F24C declaration completed by Ms Annie Cheng (General Manager – Pharmacist). Ms Cheng provided the following reasons for the termination of the Agreement: “the employees are not better off financially than if they were paid under the Pharmacy Industry Award” and that there were thirteen employees still covered under the Agreement.

1. The application and declaration (Forms F24B and F24C) were served on the employees still covered by the Agreement on 14 December 2022 and the employees were invited to provide any submissions, either for or against the termination of the Agreement by no later than 20 December 2022. One employee responded advising that she agreed to the termination of the Agreement. No other responses were received.

1. The employer has applied for the termination of the Agreement.

1. There is no employee organisation covered by the Agreement whose views or circumstances I can take into account.

1. I am satisfied that none of the criteria in s.226(4) are applicable in this matter and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).

1. The termination will operate from the date of this decision.

DEPUTY PRESIDENT

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