NVC Operations Pty Ltd T/A National Veterinary Care [2018] FWCA 5752 (12 September 2018)

Last Updated: 19 September 2018

[2018] FWCA 5752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date
NVC Operations Pty Ltd T/A National Veterinary Care

(AG2018/3883)

MUSTANG MENTORING PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Health and welfare services
COMMISSIONER BOOTH	BRISBANE, 12 SEPTEMBER 2018

Termination of the Mustang Mentoring Pty Ltd Employee Collective Agreement 2009 (Workplace Authority Agreement) after its nominal expiry date.

[1] On 17 August 2018 NVC Operations Pty Ltd T/A National Veterinary Care (the Employer) applied, to terminate the Mustang Mentoring Pty Ltd Employee Collective Agreement 2009 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration of Gillian Porter, Human Resources Manager.

[3] The Agreement was approved by the Workplace Authority in approximately June 2009 and the duration was 5 years. The Employer inherited the Agreement upon purchasing a group of 7 veterinary businesses in August 2015.

Legislative provisions

[4] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.

[5] Chapter 2, Part 2-4, Division 7, Subdivision D is 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;

(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.”

[6] Material contained in the statutory declaration and annexures filed with the application, included an analysis that provided details of the effect of the termination of the Agreement on both the employer and employees.

[7] The statutory declaration stated that the analysis was provided in full to all employees and that there are 48 employees covered by the Agreement.

[8] The statutory declaration also provided a comparison of some but not all the differences for veterinary surgeons and nurses under the terminating Agreement compared to the Animal Care and Veterinary Services Award 2010 (the Award). There are some entitlements that are more favourable for veterinary surgeons than that will be available under the Award e.g. veterinary surgeons are entitled to 176 hours of annual leave compared with the Award amount as provided for in the NES of 4 weeks or 5 weeks if they are a shiftworker.

[9] I therefore note that some employees’ entitlements will be reduced on the Award as compared to the Agreement. I have taken this into consideration. Notwithstanding the reductions, I am not persuaded that the termination is contrary to the public interest. This is based on both the needs of the Employer, and that of the 24 employees who voted, 80% agreed to terminate the Agreement. It is for these reasons I conclude that the termination of the Agreement is not contrary to the public interest.

[10] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[11] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[12] The termination will take effect from today, 14 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AC325496 PR700341>