Samboot Pty Ltd T/A Samford Pet Resort and Northshore Pet Resort

[2020] FWCA 5967

[2020] FWCA 5967

FAIR WORK COMMISSION

DECISION

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

Samboot Pty Ltd T/A Samford Pet Resort and Northshore Pet Resort
(AG2020/2680)

SAMBOOT PTY LTD ENTERPRISE AGREEMENT 2016

Animal care and veterinary services
DEPUTY PRESIDENT LAKE	BRISBANE, 6 NOVEMBER 2020

Application for termination of the Samboot Pty Ltd Enterprise Agreement 2016.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Samboot Pty Ltd T/A Samford Pet Resort and Northshore Pet Resort (the Applicant) to terminate the Samboot Pty Ltd Enterprise Agreement 2016 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 4 July 2020.

[3] Sections 225 and 226 of the Act 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.”

[4] Mr Blake De Bruin, Director of the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr De Bruin stated that the Agreement related to employees of Samboot Pty Ltd, and that since the Agreement was approved, the Applicant had sold the portion of the business trading as Northshore Pet resort to another separate entity. The Applicant henceforth operated only the Samford Pet Resort.

[5] Mr De Bruin stated that the employees covered by the Agreement had been advised that the Applicant wished to terminate the Agreement and transition staff to the Miscellaneous Award 2020 (the Award). Mr De Bruin said that at the time of filing the application, the Applicant had not received any objections from employees.

[6] Mr De Bruin stated that termination of the Agreement is not contrary to the public interest as termination of the Agreement would result in employees being covered by a modern award and the NES, thus achieving the object of the Act of providing a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions of employment. Mr De Bruin stated that the effect of termination of the Agreement would be that employees would be subject to the Award, and are likely to be better off, giving as an example that employees would receive a loading for weekend work.

[7] On 14 September 2020, I issued Directions for filing of further material with respect to the application. I further directed that the Applicant provide the Directions and application documentation to each individual employee so that they had an opportunity to provide their views. The Applicant filed further in relation to s.225 and s.226 of the Act on 24 September 2020, and confirmed that they had served the documentation and directions by way of copies of emails to all employees.

[8] The Applicant filed witness statements from Mr Blake De Bruin and Mrs Karen De Bruin, Directors of Samford Pet Resort, and statements from Mr Colin Mackay and Mrs Kylie Mackay, Directors of Northshore Pet Resort. In their statements, they set out the steps taken in consulting staff regarding the impact of the changes terminating the Agreement would have, and detailed the documentation provided to staff, which included comparisons between the Agreement and the Award. The Applicant provided comparisons of the wage entitlements of employees under the Award and the Agreement.

[9] The Applicant submitted that it was not aware of anything that may indicate it would be contrary to the public interest to terminate the Agreement.

[10] At the date of this Decision, no employees covered by the Agreement have objected to the termination of the Agreement.

[11] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the agreement on the basis that the material satisfies the legislative requirements that the termination of the Agreement is appropriate. I am satisfied it is not contrary to the public interest to terminate the Agreement.

[12] The application is therefore granted and the Agreement is terminated. Termination of the Agreement will take effect from 6 November 2020.

[13] I Order accordingly.

DEPUTY PRESIDENT

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