DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Phillip Arcidiacono T/A Rose Cleaning Service
(AG2015/1419, AG2015/1420)

ROSE CLEANING SERVICE AND LHMU CLEAN START UNION COLLECTIVE AGREEMENT 2008
ROSE CLEANING SERVICE AND LHMU CLEAN START UNION COLLECTIVE AGREEMENT 2010 FOR ACT GOVERNMENT SCHOOLS

Phillips Cleaning Service Pty Ltd
(AG2015/1430)

PHILLIPS CLEANING SERVICE AND LHMU CLEAN START UNION COLLECTIVE AGREEMENT 2010 FOR ACT GOVERNMENT SCHOOLS

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	SYDNEY, 22MARCH 2016

Applications for termination of the Rose Cleaning Service and LHMU Clean Start Union Collective Agreement 2008 - Rose Cleaning Service and LHMU Clean Start Union Collective Agreement 2010 for ACT Government Schools - Phillips Cleaning Service and LHMU Clean Start Union Collective Agreement 2010 for ACT Government Schools – applications dismissed.

[1] On 12 June 2015 Phillip Arcidiacono T/A Rose Cleaning Service (RCS – the first Applicant) filed two applications made under s.225 of the Fair Work Act 2009 (the Act) seeking to terminate the Rose Cleaning Service and LHMU Clean Start Union Collective Agreement 2008 1 (the 2008 Agreement) and the Rose Cleaning Service and LHMU Clean Start Union Collective Agreement 2010 for ACT Government Schools2(the RCS Schools Agreement). On the same day, Phillips Cleaning Service (PCS – the second Applicant) also made an application under s.225 of the Act seeking to terminate the Phillips Cleaning Service and LHMU Clean Start Union Collective Agreement 2010 for ACT Government Schools3(the PCS Schools Agreement). All three agreements have a nominal expiry date of 1 July 2013. For ease of reference, the first and second Applicants will jointly be referred to throughout this decision as the Applicants, while the three agreements will collectively be referred to as the Agreements and the RCS Schools and PCS Schools Agreements will together be referred to as the Schools Agreements.

[2] The application to terminate the 2008 Agreement was accompanied by a petition with 58 signatories. The petition read:

“Dear Fair Work,

Please accept my signature below as full support for the application to terminate the Rose Cleaning Service and LHMU Clean Start Union Collective Agreement 2008.

I have been assured by my employer that while the current contract remains in place at my current job, my rate of pay will not be affected.

I understand that if successful, the Modern Award will apply.”

[3] A petition was also lodged with the application to terminate the RCS Schools Agreement, with that petition referring to that agreement as opposed to the 2008 Agreement. That petition again had 58 signatories. The application to terminate the RCS Schools Agreement was also accompanied by what is described as an audit/survey of RCS employees working at several schools in the ACT as to whether they were correctly paid in respect of wages and a number of other conditions and whether they were treated fairly and with respect by their employer. The audit/survey was signed by a total of 36 RCS employees.

[4] No such material was appended to the PCS application…

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.

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Details

Case: [2016] FWCA 1769
Decision Date: 22 March 2016

CaseChat Overview and Summary

Phillip Arcidiacono, trading as Rose Cleaning Service, applied to terminate the collective agreements between the Rose Cleaning Service and LHMU Clean Start Union Collective Agreement 2008 and the Phillips Cleaning Service and LHMU Clean Start Union Collective Agreement 2010 for ACT Government Schools. The applications were dismissed by the Fair Work Commission, which found that the applications did not meet the requirements for termination under the Fair Work Act 2009. The primary legal issue was whether the termination applications were justified under the relevant provisions of the Fair Work Act. The Commission found that the applications did not demonstrate the necessary grounds for termination, such as an inability to pay or a significant change in circumstances. The Commission also considered the impact of the termination on the employees and the union, and concluded that the applications were not in the best interests of the parties involved.

The Commission's reasoning focused on the statutory framework governing termination of collective agreements, and the need for a strong evidentiary basis to support such applications. The Commission emphasised the importance of protecting the rights of employees and unions, and the need to balance the interests of all parties involved. The Commission found that the applicants had not provided sufficient evidence to support their claims, and that the proposed termination would not be in the best interests of the employees or the union. The Commission also noted the potential for adverse consequences for the parties involved, including disruption to services and uncertainty for employees. Overall, the Commission concluded that the applications did not meet the necessary criteria for termination under the Fair Work Act.

The Fair Work Commission dismissed the applications for termination of the collective agreements, finding that the applicants had not demonstrated the necessary grounds for termination. The Commission emphasised the importance of protecting the rights of employees and unions, and the need to balance the interests of all parties involved. The decision highlights the importance of providing sufficient evidence to support termination applications, and the need to consider the potential impact on all parties involved. The Commission's decision provides guidance for employers and unions seeking to terminate collective agreements, and reinforces the importance of following the statutory framework governing termination of collective agreements.

Orders