Menzies Pty. Ltd.

[2023] FWCA 3

[2023] FWCA 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Menzies Pty. Ltd.

(AG2022/4618)

MENZIES PTY LTD AND LHMU CLEAN START UNION COLLECTIVE AGREEMENT 2009

Cleaning services
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 JANUARY 2023

Application for termination of the Menzies Pty Ltd and LHMU Clean Start Union Collective Agreement 2009

1. An application has been made by Menzies Pty. Ltd. (Applicant) for the termination of the Menzies Pty Ltd and LHMU Clean Start Union Collective Agreement 2009 (Agreement).

1. The application is made under s.225 of the Fair Work Act 2009 (Act), which allows for a party to apply to the Commission to terminate an enterprise agreement that has passed its nominal expiry date.

1. Relevantly, s.226 of the Act reads:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining positionof the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter”.

1. The Applicant employer has provided, in support of its termination application, a statutory declaration and Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date from Mr Greg Springall, Chief Executive Officer. In compliance with my Direction issued on 21 December 2022, the Applicant filed additional material dealing with the matters that the Commission must consider under s.226 of the Act. These included submissions and a signed witness statement of Mr Springall, both dated 29 December 2022. The filed materials included an explanation of the steps taken by the Applicant to consult with employees (through the United Workers’ Union (UWU)) regarding the potential termination of the Agreement. It is submitted that employees currently covered by the Agreement would be covered by the Cleaning Services Award 2020 (Award) and that this would leave no employee worse off as the rates of pay in the Award exceed those in the Agreement.

1. The UWU consent to the termination of the Agreement.

Consideration

1. I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account the views of the Applicant, its relevant employees, and the UWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated pursuant to s.227 of the Act. The termination takes effect on and from the date of this decision.

DEPUTY PRESIDENT

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