Millennium Hi-Tech Holdings Pty Ltd T/A Millennium

[2021] FWCA 4470

[2021] FWCA 4470

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch.3, Item 16 – Application to terminate collective agreement-based transitional instrument

Millennium Hi-Tech Holdings Pty Ltd T/A Millennium
(AG2021/5398)

AMAZON CLEANING AND SECURITY PTY LTD COLLECTIVE AGREEMENT 2007

Cleaning services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 28 JULY 2021

Application for termination of the Amazon Cleaning and Security Pty Ltd Collective Agreement 2007.

[1] Millennium Hi-Tech Holdings Pty Ltd T/A Millennium (the Applicant) has applied pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Amazon Cleaning and Security Pty Ltd Collective Agreement 2007 1 (the Agreement). The Agreement passed its nominal expiry date on an unknown date in 2010, with clause 3(b) of the Agreement providing that the nominal expiry date of the Agreement is the third anniversary of the date it is lodged. The Applicant is the employer covered by the Agreement.

[2] The Agreement is a collective agreement-based transitional instrument. Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) states that Subdivision D of Division 7 of Part 2-4 of the Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. To avoid any confusion, any requirement in relation to the correct form to be used under the Fair Work Commission Rules 2013 is waived. I am satisfied the application as submitted is satisfactory and accompanied by appropriate supporting documentation.

[3] I am satisfied the Agreement was lodged in or about 2007 and that, pursuant to clause 3(b) of the Agreement, that its nominal expiry date of the third anniversary after the date on which it was lodged has passed.

[4] On 1 June 2021, I issued directions requiring Millennium Hi-Tech Holdings Pty Ltd to provide the application form, the declaration made by Ms Luisa Marinkovic and the directions to all employees covered by the Agreement by 4 June 2021, and they were to file a further statutory declaration confirming compliance by 4:00pm on 7 June 2021. The directions provided:

● If any employee covered by the Agreement wished to file material in response to the Application regarding their views, their circumstances and the likely effect that termination of the Agreement would have on them, they were to do so by 4:00pm on 11 June 2021; and

● If Millennium Hi-Tech Holdings Pty Ltd wished to file any further material in support of the Application, including material outlining their views, their circumstances and the likely effect that termination of the Agreement would have on them, they were to do so by 4:00pm on 21 June 2021.

[5] The Commission did not receive any submissions in response to these directions. Accordingly, I advised the parties that I would determine the application based on the material before the Commission, and and if they wished to be heard they were to advise my Chambers by midday 28 July 2021. No request to be heard was received.

The legislation

[6] 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.”

Section 225 of the Act

[7] I am satisfied the requirements of s.225 of the Act are met. As outlined above, the Agreement has passed its nominal expiry date and pursuant to s.225(a), Millennium Hi-Tech Holdings Pty Ltd T/A Millennium, an employer covered by the Agreement, has applied to the Commission for the termination of the Agreement.

Section 226(a) of the Act – Public Interest

[8] As regards s.226(a) of the Act and the manner in which the public interest is to be assessed, the Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd 2(Aurizon)cited various passages from the Full Bench of the Australian Industrial Relations Commission’s decision in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 20003(Kellogg) which had concerned the corresponding, but not identical, provision from the Workplace Relations Act 1996. Relevantly, these passages included:

“The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them…” 4

[9] It is also relevant to highlight the Full Bench in Aurizon concluded that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its expiry date. This is because the Act contemplates the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement. 5

[10] As was also recognised in Aurizon, s.226 of the Act is not limited to circumstances in which an agreement no longer applies to any employee. The Act clearly contemplates an agreement that still applies to employees being terminated and prescribes a safety net upon termination in such circumstances. The prescribed safety net is the relevant modern award created during the Award Modernisation process and the National Employment Standards (NES). In this case, the relevant modern award for the relevant employees is the Cleaning Services Award 2020 6(the Award).

[11] In this application, the termination of the Agreement would not lead to an absence of award coverage for the relevant employees. The Award provides for “proper industrial standards” within the meaning given to that term by Kellogg.

[12] In circumstances where there was no material before me suggesting otherwise, I am satisfied it is not contrary to the public interest to terminate the Agreement.

Section 226(b) of the Act – Appropriateness

[13] The approach to assessing appropriateness by taking into account all the circumstances, as enunciated by the Full Bench in Aurizon, is to have reference to the construction of s.226 and the contextual matters that bear upon that construction, as well as giving specific consideration to the matters identified in ss. 226(b)(i) and (ii):

“All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s. 226(b) to take into account all of the circumstances including those set out in s. 226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s. 226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s. 226(b)(i) and (ii).” 7 (Reference omitted)

[14] I intend to adopt this approach.

[15] Ms Luisa Marinkovic, General Manager People and Culture filed a declaration in support of the Application. The declaration states that 30 of its employees are currently covered by the Agreement which transferred to the Applicant for transferring employees pursuant to the purchase of the business and assets of Amazon Cleaning and Security Pty Ltd on 18 November 2015. It states that none of the Applicant’s other employees are covered by an enterprise Agreement, and terminating the Agreement would reduce any administrative burden on the Applicant of having employees who perform the same role subject to a different industrial instrument. It provides that if the Agreement were to be terminated, the 30 employees would be significantly better off overall as they would be covered by the Award, which provides entitlements more favourable overall than those provided by the Agreement, including overtime and penalty rates, entitlement to annual leave loading, allowances and paid breaks.

[16] The declaration provides that the Applicant has already started treating all of the employees covered by the Agreement as though they are covered by the Award because it poses practical and administrative issues to have employees who perform the same role covered by different industrial instruments, and that terminating the Agreement will advance employment equality within it.

[17] I am satisfied the employees were on notice as to the application before me and had a reasonable period of time to file material should they have wished to do so. However, no submissions from any employees were filed in the Commission and I will therefore accord neutrality to their views in considering the application.

[18] As to the circumstances of the employees and the likely effect that termination of the Agreement would have on them, I note the Agreement covers full-time, part-time and casual employees, 27 employed in the role of cleaner and three in the role of supervisor, and that cleaners fall within Level 1.

[19] There is no material before me to indicate precisely what base hourly rates of pay are currently being paid to cleaners and supervisors covered by the Agreement, however I have regard to the fact that the Act contemplates the Award and NES applying as the safety net, in the event of termination of the Agreement. I am also satisfied that if the Award was to apply to the employees, there are classifications covering cleaners and supervisors and they would receive the following conditions which are not included in the Agreement:

● overtime rates;

● penalty rates for work performed on weekends and public holidays;

● annual leave loading;

● part-time employee allowance, first aid allowance, broken shift allowance, meal allowance, vehicle allowance, toilet cleaning allowance, and travel allowance; and

● paid breaks.

[20] I note there is no employee organisation covered by the Agreement.

Conclusion

[21] The Agreement does not cover any employee organisation and the employees expressed no views in relation to the Application. However, having regard to the terms of the Agreement in their entirety as they apply to the relevant employees and the fact that they will be covered by the Award if the Agreement is terminated, together with the views and circumstances of Millennium Hi-Tech Holdings Pty Ltd, I am satisfied it is appropriate in all the circumstances to terminate the Agreement. As outlined in paragraph [12] above, I am also satisfied it is not contrary to the public interest to terminate the Agreement.

[22] Further to the above findings, the Act requires that I terminate the Agreement. 8 In accordance with s.227 of the Act, the termination will take effect from 28 July 2021.

COMMISSIONER

 1   AC307792

 2   [2015] FWCFB 540

 3 (2005) 139 IR 34

 4   Ibid at 40

 5   [2015] FWCFB 540 at [176]

 6   MA000022

 7   [2015] FWCFB 540 at [167]

 8   Fair Work Act 2009 (Cth), s.226

Printed by authority of the Commonwealth Government Printer

<AC307792  PR732116>