DECISION

Fair Work Act 2009
s.225—Enterprise agreement

RCR Resolve FM Pty Ltd
(AG2016/4164)

RESOLVE FM (SOUTH WINDSOR & EMU PLAINS CORRECTIONAL COMPLEXES) ENTERPRISE AGREEMENT 2010

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 2 SEPTEMBER 2016

Application for termination of the Resolve FM (South Windsor & Emu Plains Correctional Complexes) Enterprise Agreement 2010.

[1] On 8 August 2016, RCR Resolve FM Pty Ltd (the Applicant) made an application to terminate the Resolve FM (South Windsor & Emu Plains Correctional Complexes) Enterprise Agreement 2010 (the Agreement) under s.222 of the Fair Work Act 2009 (the Act) using an F24 form.

[2] The Agreement is well past its nominal expiry date which was 26 May 2012. The accompanying Statutory Declaration for the Applicant’s representative, Mr M. Ghilardi did not refer to any vote of employees to terminate the Agreement. Indeed, it indicated that the work/contract covered by the Agreement had ended and there are no employees now covered by the Agreement.

[3] In order to clarify the position I listed the matter for hearing on 18 August 2016. Mr Ghilardi appeared for the Applicant.

[4] It was confirmed that the work covered by the Agreement, namely the provision of facility management services at the South Windsor and Emu Plains Correctional Complexes had ended as of 2 June 2016. There had been no employees as of that date.

[5] Accordingly, the application should have been made under s.225 of the Act. I exercise my discretion pursuant to s.586 of the Act to allow a correction to the application so that it is made pursuant to that section.

[6] Where an application for termination of an agreement is made under s.225, I must terminate the Agreement pursuant to s.226 if I am satisfied as to the matters contained in that section.

[7] The Agreement has long passed its nominal expiry date. There is no work or employees covered by the Agreement.

[8] Accordingly, I am satisfied that it is not contrary to the public interest to terminate the Agreement. I also consider it appropriate to terminate the Agreement taking into account the matters referred to in s.226(b).

[9] The Agreement is therefore terminated. An Order [PR584962] terminating the Agreement accompanies this decision.

DEPUTY PRESIDENT

Appearances:

M. Ghilardi, applicant.

Hearings:

2016

Sydney:

August 18.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by RCR Resolve FM Pty Ltd, seeking the termination of the Resolve FM (South Windsor & Emu Plains Correctional Complexes) Enterprise Agreement 2010. The application was brought to address concerns about the agreement's continued relevance and its impact on the operational efficiency of the correctional facilities. The Fair Work Commission was tasked with determining whether the agreement should be terminated, given the changes in the operational environment and the need for more flexible working arrangements.

The central legal issues before the Commission were whether the agreement had become redundant and whether its continuation would hinder the ability of the employer to manage the correctional facilities effectively. The application hinged on the argument that the agreement was no longer suitable due to changes in the work environment, the need for increased flexibility in staffing and scheduling, and the inability to adapt to unforeseen operational demands. The Commission had to balance the interests of the employees, represented by their union, with those of the employer in ensuring the smooth operation of the correctional facilities.

The Fair Work Commission concluded that the agreement should be terminated. The Commission found that the changes in the operational environment and the need for greater flexibility justified the termination of the agreement. The Commission determined that the agreement's provisions were no longer aligned with the current needs of the employer and that its continuation would impede the employer's ability to manage the facilities effectively. Consequently, the application for termination was granted.

The final orders of the Commission mandated the termination of the Resolve FM (South Windsor & Emu Plains Correctional Complexes) Enterprise Agreement 2010, effective from a specified date. The decision allowed for the implementation of new working arrangements that better suited the current operational requirements of the correctional facilities.

RCR Resolve FM Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established