Australian Green Clean (Commercial) Pty Ltd

[2020] FWCA 4878

[2020] FWCA 4878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 225 - Application for termination of an enterprise agreement after its nominal expiry date

Australian Green Clean (Commercial) Pty Ltd
(AG2020/2481)

ADAMS CLEANING AND LHMU CLEAN START UNION COLLECTIVE AGREEMENT 2008

Cleaning services
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 11 SEPTEMBER 2020

Application for termination of the Adams Cleaning and LHMU Clean Start Union Collective Agreement 2008 after its nominal expiry date

[1] On 20 August 2020 Australian Green Clean (Commercial) Pty Ltd (AGC or the Applicant) applied to the Commission to terminate the Adams Cleaning and LHMU Clean Start Union Collective Agreement 2008 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] I issued directions on 24 August 2020, which, inter alia, required AGC to make the documents lodged as part of their application available to all employees with an interest, within seven days. Confirmation that the material had been served by the Applicant on all employees covered by the Agreement was received by Chambers on 26 August 2020.

[3] The Agreement covers, and was made with the Liquor, Hospitality and Miscellaneous Workers’ Union, which became “United Voice” in 2011, who subsequently merged with the National Union of Workers in 2019 to become the United Workers’ Union (UWU).

[4] The application was listed for hearing, by telephone, on 11 September 2020. The UWU were served a copy of the application by the Applicant, and a copy of the notice of listing, and my directions by Chambers.

[5] Employees and the UWU were invited to be heard on the application. The UWU appeared at the hearing. On the basis of an undertaking which had been negotiated with the Applicant, the UWU did not object to the application being granted. No employee appeared in their own right.

[6] The Applicant is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[7] Section 226 of the FW Act provides as follows:

“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.”

[8] The Agreement was approved by the former Workplace Authority on 17 November 2009. 1 It operated from 24 November 2009,2 with a nominal expiry date of 1 July 2013. The nominal expiry date has now well passed.

[9] AGC submit that the Agreement should be terminated on the following grounds:

“1. The agreement has been expired for a significant period of time.

2. As a result of the recent Fair Work Commission wage increase, employees engaged under the terms of the agreement are being remunerated at a lower overall rate under the agreement than they would be if engaged under the terms of the applicable award (Cleaning Services Award 2020)

3. Terminating the agreement in those circumstances would not be contrary to the public interest.”

[10] Evidence was provided via a statutory declaration of Charlotte Aykroyd (General Manager) signed on 11 August 2020 that the Applicant and the UWU discussed the prospective termination of the Agreement in July 2020 following which the Applicant provided an undertaking to preserve clause 42.6.2 as a condition of employment of the relevant employees, should the Agreement be terminated. That clause concerns evidentiary requirements of an employee claiming sick leave. AGC confirmed the undertaking in an email to the UWU of 31 July 2020 and again in these proceedings.

[11] AGC also provided evidence that between 22 and 31 July 2020 meetings were held with employees covered by the Agreement wherein the proposed termination was discussed. Employees were encouraged to consider the proposal’s effect and return ballot forms to AGC when they were ready to decide whether they agreed to the termination or not. By 3 August 2020 a majority of employees had returned ballots consenting to the termination.

[12] I have considered the information provided in the application and by AGC pursuant to section 225 of the FW Act and the submission of the UWU.

[13] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. Especially considering the undertaking given by the Applicant and the higher rates of pay contained in the applicable Award, I am satisfied that no adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[14] The termination will come into effect from 11.59pm 15 September 2020. An Order to this effect will be issued. 3

DEPUTY PRESIDENT

Hearing details:

Adelaide (by telephone),

2020

11 September.

Appearances:

Mr T Earls, with permission, for the Applicant

Mr A Snowball, for the United Workers’ Union

 1   CAUN096141655

 2   Clause 4.2 of the Agreement sets out a precedent clause that was to be met before the Agreement commenced operating in the State of Queensland, if met, the Agreement commenced on 1 March 2009 in Queensland

 3   PR722699

Printed by authority of the Commonwealth Government Printer

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