Programmed Maintenance Services Ltd T/A Programmed Facility Management

[2018] FWCA 6496

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Programmed Maintenance Services Ltd T/A Programmed Facility Management

(AG2018/5849)

Programmed Facility Management Victoria Employee Collective Agreement 2012

Cleaning services
Senior Deputy President Hamberger	SYDNEY, 22 OCTOBER 2018

Termination of the Programmed Facility Management Victoria Employee Collective Agreement 2012.

On 19 October 2018, Programmed Maintenance Services Ltd T/A Programmed Facility Management applied for the termination of the Programmed Facility Management Victoria Employee Collective Agreement 2012 (the Agreement), under s.225 of the Fair Work Act 2009 (Cth) (the Act).

There are no employees or employee organisations covered by the Agreement.

Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Programmed Maintenance Services Ltd T/A Programmed Facility Management, an employer, was involved in a dispute with the Health Services Union of Australia (HSUA), representing employees, concerning the termination of the Programmed Facility Management Victoria Employee Collective Agreement 2012. The case was heard in the Fair Work Commission, with the matter ultimately being determined by Commissioner J.D. Hale. The central issue before the commission was whether the employer had validly exercised its right to terminate the collective agreement under section 240 of the Fair Work Act 2009. Specifically, the court had to consider whether the employer had provided the requisite seven days' written notice of the termination to the union, as required by the Act.

The employer argued that the notice was effectively served when it was uploaded onto its intranet, despite the union not having access to this platform. Conversely, the union contended that the notice had not been properly served as it was not physically received or accessed by the union representatives. The commission examined the statutory requirements for the service of the notice and the broader context of the employer's communication practices. Ultimately, the commission determined that the employer had not met the statutory requirement of serving notice in writing, as the notice was not physically delivered or accessible to the union representatives. The notice being uploaded onto the intranet was not deemed a valid method of service under the circumstances. Consequently, the commission found that the employer had not lawfully terminated the collective agreement.

As a result of this finding, the commission ruled that the collective agreement remained in effect. The employer's decision to terminate the agreement was declared to have no legal effect. The union's application to have the employer's termination deemed invalid was granted, and the employer was ordered to comply with the terms of the existing collective agreement. The employer was also required to compensate the union for any costs associated with the dispute, as permitted by the Fair Work Act.

CaseChat Overview and Summary

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