The Standish Street Surgery Hybrid Trust T/A Standish Street Surgery

[2021] FWCA 4441

[2021] FWCA 4441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

The Standish Street Surgery Hybrid Trust T/A Standish Street Surgery
(AG2021/5999)

STANDISH STREET SURGERY ENTERPRISE AGREEMENT 2010-2014

Health and welfare services
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 JULY 2021

Application for termination of the Standish Street Surgery Enterprise Agreement 2010-2014.

[1] The Standish Street Surgery Hybrid Trust T/A Standish Street Surgery (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate the Standish Street Surgery Enterprise Agreement 2010-2014 (the Agreement). The Agreement is expressed to cover the Applicant and “all eligible employees of the employer whose classification of work is provided for by” the Agreement.

[2] Sections 222 and 223 of the Act states as follows:

“222 Application for FWC approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWC considers it fair to extend that period—within such further period as FWC allows.

223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 8 April 2011 1. It was approved to operate from 15 April 2011 with a nominal expiry date of 30 December 2014. It has now passed its nominal expiry date. It is an agreement made directly with employees. No industrial organisation is covered by it.

[4] In accordance with my directions, employees covered by the Agreement were provided an opportunity to indicate whether any objection would be taken to the termination application or if they sought to be heard. No objection has been indicated and no employee has sought to be heard.

[5] I note that the statutory declaration of Dr Simon Shute, who is the Practice Principal of the Applicant, states that a secret ballot of employees conducted on 30 June 2021 resulted in a majority of employees who participated in the ballot, voting in support of termination of the Agreement. The application was filed in the Commission on 2 July 2021.

[6] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that the requirements of s.223 of the Act have been met. Accordingly, it is appropriate to terminate the Agreement and I so determine.

[7] The termination will operate from 23 July 2021. An order giving effect to this decision will be issued in conjunction with this decision.

DEPUTY PRESIDENT

 1   [2011] FWAA 2164

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