Ruchika Garg Pty Ltd & Tasha Dodd Pty Ltd T/A Hopkins Dental

[2021] FWCA 3873

[2021] FWCA 3873

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Ruchika Garg Pty Ltd & Tasha Dodd Pty Ltd T/A Hopkins Dental
(AG2021/5652)

HOPKINS STREET DENTAL EMPLOYEE COLLECTIVE AGREEMENT

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 7 JULY 2021

Application for termination of the Hopkins Street Dental Employee Collective Agreement.

[1] This decision concerns an application made by Ruchika Garg Pty Ltd & Tasha Dodd Pty Ltd T/A Hopkins Dental (the Applicants) for the termination of the Hopkins Street Dental Employee Collective Agreement (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act) and Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[2] The Agreement is a collective agreement-based transitional instrument and has passed its nominal expiry date. By way of background, Ruchika Garg Pty Ltd and Tasha Dodd Pty Ltd are registered companies which operate a dental practice under the trading name Hopkins Dental. The employers covered by the Agreement have made and are entitled to make application to the Fair Work Commission to terminate the agreement.

[3] Item 16 of Schedule 3 to the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] 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;

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

[5] Section 226 of the Fair Work Act 2009 (the Act) sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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.”

[6] With the application, the Applicants lodged two statutory declarations declared by:

•  Dr Ruchika Garg, Director of Ruchika Garg Pty Ltd; and

•  Dr Tasha Dodd, Director of Tasha Dodd Pty Ltd.

[7] The statutory declarations are similar in content, and can be summarised as follows:

•  That Ruchika Garg Pty Ltd and Tasha Dodd Pty Ltd are registered companies which operate a dental practice under the trading name Hopkins Dental.

•  The Agreement was approved in 2008. The Agreement continues to exist even though it has passed its nominal expiry date.

•  It is not contrary to the public interest to terminate the Agreement because the Applicants would like employees to be covered by the Health Professionals and Support Services Award 2020 and the National Employment Standards.

•  The Applicants consider that the change will have no real impact on the employees because they need to comply with the current National Employment Standards, so some terms in the Agreement are in fact no longer effective based on the no detriment rule under the Transitional Act.

•  On 1 June 2021, employees were informed during individual performance reviews of the intention to terminate the Agreement, and employees were asked for their feedback. The Applicants also emailed each employee and asked them for the views on the proposed termination of the Agreement.

•  As at 10 June 2021, the Applicants did not receive any feedback or views from the employees on the proposed termination, and no employees have expressed any concerns.

•  The Applicants request that the Commission approve the termination of the Agreement with immediate effect.

[8] On 21 June 2021, my chambers wrote to the Applicants directing them to take action to enable me to obtain information in relation to the views and circumstances of employees. Specifically, they were directed to provide to the employees covered by the Agreement a notice (the Notice) in the following terms, as well as providing me with a statutory declaration outlining the steps the employers took to make the Notice available to employees:

“An application has been made byRuchika Garg Pty Ltd & Tasha Dodd Pty Ltd T/A Hopkins Dental to terminate the Hopkins Street Dental Employee Collective Agreement (the Agreement).

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

If the application to terminate the Agreementis successful, your minimum employment entitlements will be regulated by the Health Professionals and Support Services Award 2020.

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 [phone]. Views are to be provided to the Fair Work Commission by no later than 4.00pm on Wednesday, 30 June 2021.

Once this course of action is followed, the Commissioner asks that the employer provides in writing details of the action it took to make the Notice available to employees in a statutory declaration.

The Commissioner has asked that a statutory declaration including the above information please be provided as soon as possible but by no later than 4.00pm on Thursday, 24 June 2021.”

[9] On 24 June 2021, I received a statutory declaration declared by Tracy Hunt (Administration and HR Coordinator) on behalf of the Applicants. The statutory declaration states that the Notice was placed on the staff notice board in the lunch room on 21 June 2021. Photographic evidence of this was also provided.

[10] No further views were received from or on behalf of any party.

[11] Having regard to the above, 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. I am also satisfied, in accordance with s.226(b) that it is appropriate to terminate the Agreement having regard to the circumstances of the employees, employers and organisations covered by the Agreement, including the likely effect that the termination will have on each of them. I am therefore required under s.226 of the Act to terminate the Agreement.

[12] In accordance with s.226 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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