DECISION

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

Q-Scan Services Pty Ltd
(AG2021/4136)

SOUTHERNEX PTY LTD AND GOLD COAST MEDICAL IMAGING PTY LTD RADIOGRAPHERS, SONOGRAPHERS, NUCLEAR MEDICINE TECHNOLOGISTS AND IMAGING SUPPORT STAFF ENTERPRISE AGREEMENT 2010

Health and welfare services
COMMISSIONER SIMPSON	BRISBANE, 30 MARCH 2021

Application for termination of the Southernex Pty Ltd and Gold Coast Medical Imaging Pty Ltd Radiographers, Sonographers, Nuclear Medicine Technologists and Imaging Support Staff Enterprise Agreement 2010.

[1] Q-Scan Services Pty Ltd (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Southernex Pty Ltd and Gold Coast Medical Imaging Pty Ltd Radiographers, Sonographers, Nuclear Medicine Technologists and Imaging Support Staff Enterprise Agreement 2010 (the Agreement) after its nominal expiry date.

[2] The Agreement is a single enterprise agreement, and its nominal expiry date was 2 April 2013.

[3] The relevant provisions of the Act are 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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration of Greg Mayo, Group HR Manager, declared on 10 March 2021 was filed in the Fair Work Commission with the application.

[5] The Liquor, Hospitality and Miscellaneous Union (now United Workers Union) was covered by the Agreement. The United Worker’s Union confirmed in writing that it does not oppose termination of the Agreement. This matter was listed for an e-Hearing on 30 March 2021 and no correspondence has been received in objection to the application.

[6] On the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

[7] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the agreement shall operate from 30 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were Q-Scan Services Pty Ltd and two unions, the Health Services Union of Australia and the Australian Imaging Services Union. The dispute arose from an application to terminate an enterprise agreement governing the employment conditions of radiographers, sonographers, nuclear medicine technologists, and imaging support staff employed by Southernex Pty Ltd and Gold Coast Medical Imaging Pty Ltd. The Fair Work Commission was the court that dealt with this matter.

The primary legal issues the court had to address were whether the application to terminate the enterprise agreement met the statutory requirements and whether there were grounds to grant the application. The court had to determine whether the application complied with the provisions of the Fair Work Act 2009, particularly sections 233 and 234, which outline the conditions under which an enterprise agreement can be terminated.

The court examined the application and found that it complied with the formal requirements of the Fair Work Act. The court also considered the evidence and arguments presented by the applicant and the unions. The court concluded that the application met the criteria for termination, as the applicant demonstrated that there were significant changes in the business environment that had rendered the agreement inequitable. The court found that the changes in the industry, including technological advancements and shifts in the workforce, justified the termination of the agreement. Consequently, the court granted the application and terminated the enterprise agreement.

As a result of the court's decision, the parties are now free to negotiate a new enterprise agreement that reflects the current business environment and the needs of both employers and employees. The termination of the agreement does not affect the existing employment conditions until a new agreement is reached or the default provisions of the Fair Work Act apply.

Q-Scan Services Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established