Berkeley Challenge Pty Ltd T/A Berkeley Challenge
[2018] FWCA 7506
•11 DECEMBER 2018
| [2018] FWCA 7506 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.225—Enterprise agreement
Berkeley Challenge Pty Ltd T/A Berkeley Challenge
(AG2018/6339)
Berkeley Challenge Pty Ltd - Bluescope Steel Site Cleaning Agreement 2010
| Cleaning services | |
| Deputy President Clancy | MELBOURNE, 11 DECEMBER 2018 |
Application for termination of the Berkeley Challenge Pty Ltd - Bluescope Steel Site Cleaning Agreement 2010.
On 14 November 2018, Berkeley Challenge Pty Ltd T/A Berkeley Challenge (Berkeley Challenge) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) to terminate the Berkeley Challenge Pty Ltd – Bluescope Steel Site Cleaning Agreement 2010 (the Agreement). The nominal expiry date of the Agreement was 31 May 2013.
The Act relevantly provides 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.”
A statutory declaration filed by Mr David Tait, Manager, provided that the Agreement covers employees who perform duties covered by the classification structure in the Agreement at the Bluescope Steel Port Kembla site. Mr Tait confirmed there are currently no employees covered by the Agreement. Mr Tait said on 1 December 2017, Berkeley Challenge ceased to provide services covered by the Agreement and employees were either re-deployed throughout Spotless Group or their employment was terminated due to redundancy. It was submitted by Mr Tait that termination of the Agreement would not be contrary to the public interest because:
· There are no employees covered by the Agreement, therefore no employees will be disadvantaged by the termination of the Agreement;
· Berkeley Challenge currently has no commercial contracts to perform work covered by the Agreement nor is it foreseeable that it will be contracted to do so in the future;
· If any employee was employed by Berkeley Challenge in the future to perform work which is currently covered by the Agreement, they would be covered by the Cleaning Services Award 2010 (the Award) and entitled to minimum terms and conditions in accordance with the Award, together with the National Employment Standards. There is therefore a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions (consistent with s.3(b) of the Act) which would apply to any employees who might be employed after the Agreement is terminated;
· The parties to the Agreement expressly contemplated that termination of the Agreement was a relevant possibility once the Agreement reached its nominal expiry date (as evidenced by Clause 3 of the Agreement);
· Bargaining for a future enterprise agreement would also remain available should there be any employees which commence employment for Berkeley Challenge undertaking cleaning duties at the Bluescope Steel Port Kembla site (consistent with s.3(f) of the Act); and
· There is no detrimental effect on the public by the termination of the Agreement.
On 16 November 2018, I caused an email to be sent to the Australian Workers Union (the AWU) and United Voice, organisations covered by the Agreement, seeking their views in respect of the Application. The emails were sent to [email protected] and [email protected]. These addresses were provided to the Commission on the Application form.
As no response was received, a further email was sent to the AWU and United Voice on 3 December 2018 seeking their views. A response was sought as soon as possible. Later the same day, a representative of the AWU advised the email had been sent to the Queensland and Victorian branches of the AWU and it was a matter for the New South Wales branches to consider. It was further noted by the representative that the SAWU National Office had forwarded the material to the New South Wales branch on an earlier occasion.
To date, no material has been received from either union. In these circumstances, it does not appear that the AWU or United Voice object to the Application.
An employer may apply under s.225(a) of the Act to the Commission for the termination of the Agreement. Mr Tait declared Berkeley Challenge is the employer covered by the Agreement and I am satisfied Berkeley Challenge has standing to bring the application under s.225(a) of the Act.
In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.
In accordance with s.227 of the Act, the termination will take effect from 11 December 2018.
DEPUTY PRESIDENT
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