DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Dawn Scowen and Sharyn Williams
(AG2019/426)

THE JASTAINE PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Cleaning services
COMMISSIONER WILLIAMS	PERTH, 18 MARCH 2019

Application for termination of The Jastaine Pty Ltd Employee Collective Agreement 2009.

[1] This decision concerns an application made by Mrs Dawn Scowen and Mrs Sharyn Williams (the Applicants) for the termination of The Jastaine Pty Ltd Employee Collective Agreement 2009 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employee covered by the agreement, to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicants who are employees within Jastaine Pty Ltd have each provided in support of the application a statutory declaration.

[6] The Applicants explain the Agreement had a nominal expiry date in 2014, and that employees covered by the Agreement are at a disadvantage compared to those covered by the Award.

[7] The Applicants submit that in the circumstances terminating the Agreement would not be contrary to the public interest.

[8] The employer was invited to provide its view on the application. The employer advised it was not opposed to the application, but sort that the effective date of the termination be delayed in order to have time to finalise commercial arrangements.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the Applicants and the employer, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, The Jastaine Pty Ltd Employee Collective Agreement 2009 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from 12 April 2019.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Dawn Scowen and Sharyn Williams applied for the termination of The Jastaine Pty Ltd Employee Collective Agreement 2009. The application arose from a dispute between the applicants and their employer, The Jastaine Pty Ltd, concerning the terms and conditions of employment as outlined in the collective agreement. The applicants sought termination on the basis that the agreement was no longer appropriate due to significant changes in the workforce and business operations.

The central legal issue before the Commission was whether the collective agreement should be terminated due to the substantial changes in the workplace environment. This required an analysis of whether the changes rendered the agreement obsolete or unsuitable for the current workforce. The applicants argued that the agreement did not adequately address the new operational realities, while the employer contended that the agreement was still relevant and applicable.

The Commission considered the evidence presented by both parties regarding the changes in the workplace and the terms of the collective agreement. It assessed the impact of these changes on the fairness and effectiveness of the agreement. Ultimately, the Commission found that the changes were indeed significant enough to warrant the termination of the existing agreement. The current terms did not appropriately reflect the new operational context, and thus, the agreement was deemed unsuitable for continuing in its current form. As a result, the application for termination was successful.

In its decision, the Commission ordered the termination of The Jastaine Pty Ltd Employee Collective Agreement 2009, effective from the date of the decision. The Commission directed the parties to negotiate a new agreement that would be fair and appropriate for the current workforce and business operations. This decision provides a clear pathway for the parties to move forward in addressing the changed circumstances of their employment relationship.

Dawn Scowen and Sharyn Williams

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established