Ana Tobon; Jose Burges; Carlos Valles; Leonor Ahumada; Elvira Martinez

[2016] FWCA 160

[2016] FWCA 160

FAIR WORK COMMISSION

DECISION

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

Ana Tobon; Jose Burges; Carlos Valles; Leonor Ahumada; Elvira Martinez
(AG2015/5885)

SPRINGMOUNT PROPERTY SERVICES PTY LIMITED COLLECTIVE AGREEMENT

COMMISSIONER SIMPSON BRISBANE, 18 FEBRUARY 2016

Application for termination of the Springmount Property Services Pty Limited Collective Agreement – Undertakings provided – Application granted with prospective date of termination.

[1] On 14 October 2015 Ms Ana Tobon, Mr Jose Burges, Mr Carlos Valles, Ms Leonor Ahumada and Ms Elvira Martinez (the Applicants) lodged an application with the Fair Work Commission (the FWC) pursuant to item 16 Schedule 3 of the Fair Work (TPCA) Act 2009 (the TPCA Act). The effect of the TPCA Act is that Section 225 and 226 of the FW Act are to be applied for the purposes of this application. The Applicants were represented by the United Voice (UV).

[2] A directions hearing was held on 25 November 2015 and directions were issued for the filing of material. As discussed and agreed at the directions hearing an amended application and statutory declaration were filed by the Applicants on 3 December 2015.

[3] The application is for the termination of the Springmount Property Services Pty Limited Collective Agreement (the Agreement) after its nominal expiry date. The Agreement is a collective agreement based transitional instrument. The Agreement was approved by the Workplace Authority and operative from 31 July 2009. Clause 1.5(a) of the Agreement states the nominal expiry date be 5 years from the date of lodgement. Clause 1.5(b) indicates the intention that the Agreement continues to operate unless replaced by a new agreement, or terminated by agreement between the parties. The nominal expiry date of the Agreement is 31 July 2014.

[4] The Applicants rely on the evidence of Natalia Pantano, a Union Organiser employed by UV in the cleaning industry who provided a statement dated 15 December 2015 and supplementary statement dated 10 February 2016. The Applicants also rely on the statutory declaration of Christopher Murray of UV.

[5] The Respondent initially relied on an outline of submissions, a statutory declaration of Nicola Adair the Retailing Estimating and Special Projects Manager of the Respondent and a number of other managers or supervisors to oppose termination of the agreement.

[6] The matter was listed for hearing 12 February 2016. Early in the course of the hearing on 12 February the parties agreed to adjourn into conference. Following discussions in conference the parties advised on the record at the recommencement of the hearing on Friday 12 February 2016, that they had arrived at an agreement based on the Respondent giving certain undertakings to the FWC, and both parties proposing to the FWC that the termination have effect from a prospective date of 30 September 2016. At the request of the FWC both parties agreed to confer and provide to my chambers in writing by the following week the nature of the arrangement agreed upon.

[7] On Wednesday 17 February 2016 email correspondence was received in my chambers from the Respondent setting out the nature of the position as agreed, and further email correspondence was received from the Applicant’s representative confirming that the Respondents earlier correspondence of that day reflected the agreed position. The consent position of the parties for the termination of the Agreement effective 30 September 2016 is outlined below in the form of “agreed facts” and “undertakings by consent”.

[8] The agreed facts:

“The matter before the Commission is an application under section 225 and 226 of the Fair Work Act 2009 (FW Act) by Tobon, Ana Marie & Burges, Jose L. and Others whom seek the termination of the Springmount Property Services Pty Limited Collective Agreement (“the Springmount agreement”).

The parties to the application filed submissions to the Commission that it was not contrary to the public interest to terminate the Agreement.

The material provided to the Commission incorporates the views of Springmount employees and Springmount Property Services.

The matter was listed for hearing before Commissioner Simpson on Friday 12 February 2016. At the commencement of the hearing, the parties entered into discussions which resulted in a consent position with respect to the application to terminate the agreement.

The parties have consented to the Springmount Property Services Pty Limited Collective Agreement 2009 will be terminated pursuant to section 227 of the Act. The termination of the agreement is to take effect on and from 30 September 2016.

The Respondent has entered into a series of undertakings in relation to the operation of the Agreement between the date of this decision and the date of termination of the Agreement being 30 September 2016.

The undertakings:

Springmount will not enter into any “flexibility arrangements” with employees covered by the Agreement between the date of this decision and the date of termination of the Agreement being 30 September 2016.

Springmount will cancel any existing “flexibility arrangements” on the date of this decision with employees covered by the Agreement which enable an employee to work on a Sunday at ordinary weekday rates of pay.

Effective 12 February 2016, Springmount will not alter or remove existing roster arrangements for employees who are currently working on Sundays pursuant to a “flexibility arrangement”.

Effective 12 February 2016, Springmount employees who are currently working on Sundays pursuant to a “flexibility arrangement” will continue to work on Sundays and be paid the Sunday rate specified in the Agreement subject to any extraordinary circumstances which may require a change of roster.”

[9] I am satisfied the Agreement has passed its nominal expiry date and that the application for termination of the Agreement was lodged by employees covered by the Agreement

[10] Having reviewed the material and heard the submissions of the parties I agree with the position as put by both parties that no public interest issue arises that would make it contrary to the public interest to grant the application.

[11] I have taken into consideration the tests in section 226 including the views of the employees as set out in the material filed, as well as the view of the employer that it no longer opposes termination of the Agreement subject to termination being operative from 30 September 2016, and that this position was acceptable to the Applicants on the basis of the undertakings made to the FWC. I have had regard to the circumstances of the employees, the employer and the likely effect that termination will have on each of them. The submissions, undertakings and all other relevant circumstances have led me to conclude that it is appropriate to terminate the Agreement, and I have decided to do so in accordance with power under section 227 of the Act and for the termination to operative from 30 September 2016.

COMMISSIONER

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