Alsco Pty Ltd

[2021] FWCA 6665

[2021] FWCA 6665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Alsco Pty Ltd
(AG2021/8284)

ALSCO LAUNDRY/DRY CLEAN EMPLOYEES’ COLLECTIVE AGREEMENT 2009

Cleaning services
DEPUTY PRESIDENT ASBURY	BRISBANE, 16 NOVEMBER 2021

Application for termination of the Alsco Laundry/Dry Clean Employees’ Collective Agreement 2009

[1] Alsco Pty Ltd (the Applicant/ the Employer) applies for approval of a termination of an enterprise agreement known as the Alsco Laundry/Dry Clean Employees’ Collective Agreement 2009 (theAgreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (theAct).

[2] The Agreement was approved in 2009 and nominally expired on 25 June 2014.

[3] Alsco Pty Ltd being the employer covered by the Agreement, applies for its termination pursuant to s.222 of the Act and seeks to revert to the Dry Cleaning and Laundry Industry Award 2020 (the Award). The application was accompanied by the required declarations.

[4] The Commission must terminate the Agreement if the matters in s.223 of the Act are satisfied as follows:

“223 When the FWC 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, the FWC must approve the termination if:

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

(d) the FWC 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.”

[5] The originating application was accompanied by a Statutory Declaration of Robyn Lalor-Chambers, Branch General Manager for the Applicant. Annexed to the Statutory Declaration was a copy of a Memo issued to employees prior to the vote and a copy of a “Frequently Asked Questions” (FAQ) document. The Memo explained that a vote of employees would be conducted for employees to decide whether to agree to terminate the Agreement and revert to the Award, and that information sessions would be conducted. The memo also stated that employees would receive the same rates of pay should the Agreement be terminated, noting these are above Award rates and explained that additional benefits for employees as a result of being covered by the Award included:

•  Overtime rates for overtime worked in accordance with the Award

•  Higher duties allowance – payment at the higher rate for the whole day or shift if more than four hours are worked at the higher classification or if higher duties are worked for 4 hours or less during one day or shift payment at the higher minimum hourly rate for the time worked at the higher level.

•  10 hour break between shifts where overtime is worked

•  Meal allowance in accordance with the terms of the Award - An employee required to work overtime for more than one hour after the usual finishing time on any day without being notified the prior day will be paid a meal allowance of $10.82 (unless Alsco provides a meal)

•  Meal breaks in accordance with the Award – including where an employee who is required to work more than one and a half hours overtime will be entitled to a meal break of at least 20 minutes. This break will be paid at ordinary rates of pay and will be taken at a time agreed to between the employee and employer

•  Rest breaks in accordance with the Award - an employee will be entitled to a paid rest break of 10 minutes in the morning and another in the afternoon on each day worked or with the agreement between Alsco and the majority of employees the rest period may be taken as one period of 20 minutes either in the morning or afternoon.

[6] The Memo also noted that the Applicant undertook to maintain the more beneficial minimum engagement provision from the Agreement which provide for a minimum engagement of 4 hours per shift if the termination of the Collective Agreement is agreed by employees and approved by the Fair Work Commission.

[7] On 2 November 2021, the Australian Workers’ Union (AWU) wrote to the Applicant requesting to delay the vote on the basis that it had members covered by the Agreement and wished to have an opportunity to speak to all employees about whether they were better off working under the Award or the Agreement. The Applicant delayed the vote until 8 November 2021 and the AWU attended the workplace on 4 November 2021.

[8] The termination of the agreement was agreed to by employees on 8 November 2021, with 24 employees voting to approve the termination of the Agreement out of 25 employees who are covered by the Agreement.

[9] On 12 November 2021 I caused my Associate to send correspondence to the Applicant stating my provisional view that the termination of the Agreement would be approved having regard to the matters in s.223 of the Act. The correspondence was also copied to the AWU and the opinion of that Union was sought in relation to the termination of the Agreement, notwithstanding that it was not clear whether the AWU was an employee organisation covered by the Agreement. The AWU was given until 4.00 pm on 12 November 2021 to advise whether the application to terminate the Agreement was opposed.

[10] On 12 November 2021, correspondence was received from Mr Terry McQuillan of the AWU which noted that undertakings provided by the Applicant indicated assurances as to employment conditions and salary rates would be guaranteed if the application was granted and seeking that such assurances be provided to the AWU. The correspondence also advised that if those assurances were received the AWU would not oppose the application.

[11] Mr Michael Roucek of FCB Lawyers, representative for the Applicant, responded to Mr McQuillan stating that as part of the process the Applicant had already provided two written documents to its employees (the FAQ and Memo) which stated what the effect of the termination of the Agreement would be, and that if the Agreement was terminated, the Applicant would confirm those matters in writing with the relevant employees.

[12] I caused my Associate to send further correspondence to the AWU, restating my provisional view and noting that if the application was granted, I would note the matters contained in the memo pertaining to additional benefits of the Award and the Applicant’s undertaking to ensure there would be no change to rates of pay and that the minimum engagement provision of the Agreement would be preserved. I also indicated that correspondence would be sent to the Applicant requesting it confirm whether it would be prepared to provide the written assurances sought by the AWU. Further, in the event the AWU maintained its objection, I directed the AWU to file an outline of submissions and statements of evidence addressing the basis of its objection by 4.00pm on 15 November 2021.

[13] On 15 November 2021, correspondence was received from Mr Roucek addressed to the AWU and my Associate, stating that the Applicant would provide written assurances to the employees in the form of a confirmation letter outlining the terms and conditions referenced in the FAQ document and the Memo, if the enterprise agreement was terminated, and would provide a copy to the Union. Correspondence was then received from the AWU referring to Mr Roucek’s email and advising the AWU had no objection to the termination of the Agreement.

[14] Having considered that Statutory Declaration and the information appended to it, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination.

[15] I have had regard to the fact that the Agreement was made in 2009 prior to the operation of the Award. I have also had regard to the fact that the Agreement terms are less favourable overall than those in the Award and that if the Agreement is terminated the Award will apply to employees covered by the Award to their benefit. I also note that the Employer has given an undertaking to its employees that it will maintain the more beneficial entitlement under the Agreement with respect to the minimum engagement provision of four hours per shift and will provide further written confirmation of this to its employees and to the AWU following the termination of the Agreement.

[16] The termination of the Agreement is approved. The termination will operate from 16 November 2021.

DEPUTY PRESIDENT

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