USAust Management Services T/A Paul Sadler Swimland Rowville Pty Ltd

[2013] FWCA 9858

[2013] FWCA 9858

FAIR WORK COMMISSION

DECISION

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

USAust Management Services T/A Paul Sadler Swimland Rowville Pty Ltd
(AG2013/10440)

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 16 DECEMBER 2013

Application for termination of the Paul Sadler Swimland Rowville - Collective Agreement 2006.

[1] This decision concerns an application by USAust Management Services T/A Paul Sadler Swimland Rowville Pty Ltd, under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (the Act).

[2] The application seeks to terminate the Paul Sadler Swimland Rowville - Collective Agreement 2006 (the Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 14 November 2008. No employee organisation was covered by the Agreement.

The relevant legislation

[3] Item 16 of Schedule 3 of 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] Subdivision D of Division 7 of Part 2-4 of the Act states:

“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.

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.”

[5] Submissions were received from Mr Michael Taylor, Principal Consultant, HMT Consulting, on behalf of the company, dated 10 December 2013. The submissions outlined the background to the application. It was stated that cancellation of the Agreement would provide an immediate benefit to casual employees eg. minimum engagements, split shift allowance and minimum public holiday payments. It was also indicated that employees would receive the higher of either their current hourly rate or the equivalent rate under the Fitness Industry Award 2010. A new model enterprise agreement is in the process of being made which will provide consistent terms and conditions across all of the 11 swim schools.

[6] A notice was circulated to all staff on 19 November 2013 advising them of the intention to apply for the termination of the Agreement. Staff were asked to advise the Manager if they had any concerns but no feedback was received.

[7] No submissions that the termination of the Agreement would be contrary to the public interest have been received.

[8] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act). Further, in accordance with section 226(b) of the Act, I have considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

[9] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from today's date, 16 December 2013.

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