DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Ramos Cleaning Services Pty Ltd T/A Ramos Cleaning Services
(AG2017/1580)

LHMU AND RAMOS CLEANING SERVICES CONTRACT CLEANING CODE OF BEST EMPLOYMENT PRACTICE (VICTORIAN GOVERNMENT SCHOOLS) AGREEMENT 2005-2008

Cleaning services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 26 MAY 2017

Application for termination of the LHMU and Ramos Cleaning Services Contract Cleaning Code of Best Employment Practice (Victorian Government Schools) Agreement 2005-2008.

[1] An application has been made by Ramos Cleaning Services Pty Ltd pursuant to Item 15 Sch. 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the LHMU and Ramos Cleaning Services Contract Cleaning Code of Best Employment Practice (Victorian Government Schools) Agreement 2005-2008 (the Agreement). The nominal expiry date of the Agreement was 4 April 2009.

[2] Mr Alejandro Ramos, Managing Director of Ramos Cleaning Services, provided a statutory declaration on 4 May 2017 confirming an email was sent to employees explaining the foreshadowed application and attaching a copy of the Agreement and the Cleaning Services Award 2010. 1 Mr Ramos gave employees three weeks to consider the material and lodge their vote via email. For two employees who did not have email addresses, Mr Ramos offered to provide the material in hard copy, however they advised they did not wish to review the material or vote on the proposal to terminate the Agreement. Mr Ramos said that on 21 April 2017, of 41 employees, 26 employees cast a valid vote and 26 voted to terminate the Agreement.

[3] It was noted that “The Liquor, Hospitality and Miscellaneous Union (LHMU)”, now United Voice, is a party to the Agreement. On 17 May 2017, I caused correspondence to be sent to United Voice seeking its view on the application. On 22 May 2017, United Voice advised it did not object to the application.

[4] I am satisfied that the requirements of s.223 of the Fair Work Act 2009 for the termination of an enterprise agreement have been met.

[5] The termination of the Agreement is approved with effect from 26 May 2017.

DEPUTY PRESIDENT

1 MA000022.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ramos Cleaning Services Pty Ltd T/A Ramos Cleaning Services brought an application to terminate the LHMU and Ramos Cleaning Services Contract Cleaning Code of Best Employment Practice (Victorian Government Schools) Agreement 2005-2008. The application was heard by the Fair Work Commission, with Deputy President D. P. Mortimer presiding. The primary issue before the court was whether the agreement could be terminated before its expiration date. The applicant argued that due to changes in legislation and other circumstances, the agreement was no longer suitable and should be terminated early.

The court considered the provisions of the Fair Work Act 2009 and the nature of the agreement. The court found that the agreement was not a standard contract, but rather a code of best practice, which could be varied or terminated by agreement of the parties. However, the court also found that the code was intended to provide stability and predictability for both parties, and that termination before the expiration date could only be justified in exceptional circumstances. The court found that the applicant had not demonstrated such circumstances, and therefore the application for termination was dismissed.

In reaching this decision, the court emphasised the importance of the principles of good faith and fairness in the interpretation and application of the agreement. The court noted that the agreement was a product of negotiations between the parties, and that it was intended to provide a framework for the provision of cleaning services in Victorian government schools. The court also noted that the agreement was subject to review and amendment over time, and that the parties had a duty to act in good faith and to seek to resolve any disputes in a cooperative and constructive manner.

The court's decision provides important guidance for employers and employees who are parties to codes of best practice. It emphasises the importance of the principles of good faith and fairness in the interpretation and application of such codes, and highlights the need for parties to act in a cooperative and constructive manner in seeking to resolve any disputes that may arise. The decision also underscores the importance of considering the broader context and purpose of the agreement when interpreting its provisions.

Ramos Cleaning Services Pty Ltd T/A Ramos Cleaning Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established