Spotless Facility Services Pty Ltd

[2021] FWCA 6050

[2021] FWCA 6050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Spotless Facility Services Pty Ltd
(AG2021/7070)

SPOTLESS SOUTHBANK EDUCATION PRECINCT (CAMPUS SUPPORT) ENTERPRISE AGREEMENT 2021

Cleaning services
COMMISSIONER HUNT	BRISBANE, 11 OCTOBER 2021

Application for approval of the Spotless Southbank Education Precinct (Campus Support) Enterprise Agreement 2021.

[1] Spotless Facility Services Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Spotless Southbank Education Precinct (Campus Support) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the United Workers’ Union (UWU) and the employee representative regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received by my Chambers.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] The Form F17 declared that the access period commenced on 12 August 2021 for the following reasons, noting that the ballot opened on 17 August 2021, and a clear seven days was not provided as required per s.180(4) of the Act:

“Due to a COVID-19 related lockdown in Brisbane during the period around the proposed ballot, the Employer was required to amended (sic) the access period. Copies of the ballot notice were re-distributed at site on 12 August 2021. This notice set out the time and place at which the vote was to occur and the voting method to be used.”

[5] I caused correspondence to be sent to the parties, noting to the Employer that the relevant lockdown ended on 8 August 2021. An amended Form F17 declared that the notice of ballot was, in fact, distributed on 9 August 2021, with absent employees emailed the document on 10 August 2021.

[6] I was dissatisfied with the information before me and listed the matter for a hearing on 8 October 2021, inviting the Employer to provide detailed evidence regarding the notification of the ballot. Four sworn witness statements were filed on 6 October 2021.

[7] The witness statements declare that of the 43 employees to be covered by the Agreement, 41 of the employees were informed of the ballot on 9 August 2021, and two were informed on 10 August 2021.

[8] The outcome of the vote was all 43 employees to be covered by the Agreement voted to make the Agreement.

[9] As it turns out, the original declaration at [4] was incorrect due to miscommunication within the Employer.

[10] I inquired of the UWU and the employee representative if they were satisfied with me determining the matter on the material before the Commission without the requirement for a hearing. No party objected to that course of action, and accordingly, the hearing was vacated and have taken into consideration the witness statements.

[11] Where an employee voting to approve an agreement has not been provided with a clear seven days’ notice of the ballot as required by s.180(4), my usual practice is to make inquiries of the employee to determine if they consider that they may have been disadvantaged by having been provided with less than seven clear days’ notice of the ballot. In this instance, only two of the 43 employees were not provided with seven clear days’ notice of the ballot.

[12] Section 188(2) of the Act allows the Commission to use discretion to approve an agreement where there have been minor procedural or technical errors in having an agreement approved by employees, and where the employees were not likely to have been disadvantaged by the errors:

“(2)  An enterprise agreement has also been genuinely agreedto by the employees covered by the agreement if the FWC is satisfied that:

(a)  the agreement would have been genuinely agreedto within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b)  the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

[13] Noting that only two of the 43 employees were not provided with a clear seven days’ notice of the ballot, and of the two employees who were provided with only six clear days’ notice, on the unanimous results they voted to approve the Agreement, I do not consider it necessary to communicate directly with the two affected employees. I am satisfied, having regard to the results of the ballot that the Agreement would have been genuinely agreed to but for the minor procedural or technical errors, and the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

[14] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, and what I have decided above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[15] The UWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the UWU.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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ANNEXURE A