DECISION

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

Spotless Defence Services Pty Ltd
(AG2017/3948)

SPOTLESS (RMV) MAINTENANCE EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 11 SEPTEMBER 2017

Application for termination of the Spotless (RMV) Maintenance Employee Collective Agreement 2009.

[1] On 1 September 2017, Spotless Defence Services Pty Ltd (the Applicant) lodged an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act) to terminate the Spotless (RMV) Maintenance Employee Collective Agreement 2009 (the Agreement).

[2] Item 16 of Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that its nominal expiry date has passed.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[5] Based on the material filed with the application, I am satisfied that there are no employees and employee organisations covered by the Agreement. I have considered the views of the employer who is covered by the Agreement and their circumstances, including that the termination of the Agreement will remove a potential obstacle to their related businesses gaining work regulated by the Code for Tendering and Performance of Building Work 2016.

[6] Having considered the information provided in the application, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that the termination of the Agreement is appropriate having regard to all the circumstances, as set out in the statutory declaration filed with the application. Accordingly, the Agreement is terminated.

[7] In accordance with section 227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Spotless Defence Services Pty Ltd, the Federal Court of Australia was tasked with considering an application for the termination of the Spotless (RMV) Maintenance Employee Collective Agreement 2009. The application was brought by Spotless Defence Services Pty Ltd, the employer, seeking to terminate the collective agreement which was in place between the company and the employees represented by the relevant union. The dispute centred around the validity and applicability of the agreement in light of certain changes in the business operations and the workforce of the company.

The central legal issues the court needed to resolve were whether the changes in the company's operations and workforce were significant enough to warrant a termination of the existing collective agreement and if the proper procedures for termination as outlined in the Fair Work Act 2009 had been followed. The court had to determine whether the application met the statutory criteria for termination, including whether the agreement had become inappropriate due to changes in the business circumstances of the employer.

In delivering its judgment, the court considered the evidence provided by Spotless Defence Services Pty Ltd regarding the substantial changes in the company's operations and workforce. The court evaluated whether these changes rendered the collective agreement inappropriate or ineffective. The court also examined whether the employer had fulfilled the procedural requirements for the termination of the agreement, including providing the necessary notifications and engaging in good faith negotiations with the relevant union. The court concluded that the employer had demonstrated sufficient grounds for termination and that the proper procedures had been followed. Consequently, the court ruled in favour of terminating the collective agreement.

The court's final orders included the termination of the Spotless (RMV) Maintenance Employee Collective Agreement 2009, effective from a date specified in the judgment. The court also directed the parties to take certain steps to ensure a smooth transition and to address any transitional issues that might arise from the termination of the agreement.

Spotless Defence Services 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