Nightcliff Pharmacy Pty Limited T/A Nightcliff Amcal Pharmacy

[2020] FWCA 3442

[2020] FWCA 3442

FAIR WORK COMMISSION

DECISION

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

Nightcliff Pharmacy Pty Limited T/A Nightcliff Amcal Pharmacy
(AG2020/1791)

NIGHTCLIFF PHARMACY ENTERPRISE AGREEMENT 2009

Retail industry
COMMISSIONER SPENCER	BRISBANE, 3 JULY 2020

Application for termination of the Nightcliff Pharmacy Enterprise Agreement 2009.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Nightcliff Pharmacy Pty Limited T/A Nightcliff Amcal Pharmacy (the Applicant) to terminate the Nightcliff Pharmacy Enterprise Agreement 2009 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 1 December 2013.

[3] The Commission must be satisfied that the requirements in s.225 and s.226 of the Act are met prior to approving the termination of the Agreement. Accordingly, further material (detailed below) is sought in relation to these relevant provisions.

[4] Sections 225 and 226 of the FW Act relevantly 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 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.”

[5] Mr Scott Harris, National Manager of Workplace Relations & Business Policy for the Pharmacy Guild of Australia, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Harris stated that the Applicant sought the termination of the Agreement on the basis that the provisions of the existing Agreement are less generous and less understood than the applicable Award, that being the Pharmacy Industry Award 2020 (the Award). Mr Harris submitted that there would be no negative impact on employees or the employer or the public should the Agreement be terminated. Mr Harris said that the Agreement provisions provide a disincentive to attract suitable individuals to be employees.

[6] Mr Harris said that terminating the Agreement would allow for the Award to be implemented and provide a simple and more easily understood workplace instrument. Mr Harris said that under the Award, there would be a slight increase in remuneration for employees, a decrease in rostering issues, and increased conditions of employment.

[7] I issued Directions for filing of further material in support of the application on 24 June 2020. The Applicant provided further submissions on 24 June 2020.

[8] The Applicant submitted that verbal explanations were given to employees as to the benefits if the enterprise agreement was terminated. The Applicant said that they had received questions from employees about their entitlements under the Agreement, including from casual employees regarding the casual loading and penalty rates, and from pharmacists regarding application allowances.

[9] The Applicant said that the circumstances that would likely affect employees if the enterprise agreement would be an increase to casual loading, inclusion of casual conversion provisions, an increase to minimum shift length, an increase in allowances application to employees, and a Pharmacy Assistant employment classification with the inclusion of PA Level 4 classification and wage rates.

[10] The Applicant provided an outline of wages payable under the Agreement and the Award and a comparison of these rates, as well as modelling conducted on the basis of a 32 hour week for a Pharmacist in Charge and a 30 hour week for a Pharmacy Assistant Level 3. The Applicant submitted that based on the modelling, an employee working the regular shift would be in receipt of increased remuneration compared to the current employment arrangements.

[11] The Applicant submitted that there is nothing contrary to public interest in terminating the Agreement as the employee would be provided with increased benefits under the applicable Award provisions.

[12] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 30 June 2020.

[13] I Order accordingly.

COMMISSIONER

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