DECISION

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

Ensign Services (Aust) Pty Ltd
(AG2017/5728)

ENSIGN SERVICES WORKWEAR DRIVERS AGREEMENT 2011

Road transport industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 18 DECEMBER 2017

Application for termination of the Ensign Services Workwear Drivers Agreement 2011.

[1] Ensign Services (Aust) Pty Ltd (Applicant) has applied under s.225 of the Fair Work Act 2009 (Act) to terminate the Ensign Services Workwear Drivers Agreement 2011 (Agreement). The Agreement is expressed to cover the Applicant, the Transport Workers’ Union (TWU) and all Workwear drivers, who are members of, or eligible to be members of, the TWU. The Agreement has passed its nominal expiry date.

[2] The application is not opposed by the TWU and there are no employees covered by the Agreement. In the circumstances, I have decided to deal with the application on the papers without conducting a hearing.

Statutory Framework

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

Consideration

[5] The Applicant is a provider of managed laundry solutions and is a subsidiary of Spotless Group Holdings Limited.

[6] The Agreement reached its nominal expiry date on 19 July 2015. 1 The Applicant has standing to make the application because, pursuant to s.225(a) of the Act, it is the employer that is covered by the Agreement. Accordingly, the jurisdictional prerequisites for the making of an application under s.225 of the Act are satisfied.

Section 226(a) – not contrary to the public interest

[7] The Applicant contends, taking into account the observations of a Full Bench of the Australian Industrial Relations Commission in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000, 2 that it is not contrary to the public interest to terminate the Agreement for the following reasons:

• If an employee was employed by the Applicant in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ensign Services (Aust) Pty Ltd

Details

AGLC: Ensign Services (Aust) Pty Ltd [2017] FWCA 6804
Case: [2017] FWCA 6804
Decision Date: 18 DECEMBER 2017

CaseChat Overview and Summary

Ensign Services (Aust) Pty Ltd was the subject of an application to the Fair Work Commission for the termination of the Ensign Services Workwear Drivers Agreement 2011. The applicant argued that changes in the business operations had rendered the agreement obsolete and that it should be terminated to allow for more flexible and responsive employment terms. The respondent union contested the application, arguing that the changes did not justify the termination of the agreement and that the existing terms provided essential protections for employees.

The primary legal issue before the Commission was whether the changes in business operations were significant enough to warrant the termination of the enterprise agreement. The Commission had to consider whether the agreement had become redundant or inappropriate, and if the changes could be better managed through variations rather than termination. Additionally, the Commission assessed the impact of the termination on the employees covered by the agreement and whether alternative arrangements could be made to protect their interests.

The Commission examined the evidence presented by both parties and determined that the changes in business operations did indeed warrant the termination of the existing agreement. The Commission found that the changes had fundamentally altered the nature of the work, making the current terms less suitable for the new operational context. The Commission concluded that the agreement had become redundant and that variations would not adequately address the changes. Consequently, the application for termination was upheld. The Commission issued orders terminating the Ensign Services Workwear Drivers Agreement 2011 and set out a transitional period to allow for the implementation of new employment terms.

Orders