DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Spotless Facility Services Pty Ltd
(AG2018/4781)

COMMISSIONER SIMPSON

BRISBANE, 6 MARCH 2019

Application for approval of the Spotless BHPB WA Sites Enterprise Agreement 2018 – application dismissed.

[1] On 29 August 2018 Spotless Facility Services Pty Ltd (Spotless) made an application under s.185 of the Fair Work Act 2009 for approval of the Spotless BHPB WA Sites Enterprise Agreement 2018 (the Agreement).

[2] The application was accompanied by a Form F17 Statutory Declaration. The Statutory Declaration included at 2.3 a statement that employees were emailed a copy of the Notice of Employee Representational Rights (NERR) on 1 May 2017.

[3] The prescribed form for a NERR is set out in Schedule 2.1 of the Fair Work Regulations 2009. On 31 December 2018 the Fair Work Commission Agreements Team sent email correspondence to the representative of Spotless advising an issue had been identified that may prevent the application from progressing.

[4] The issue was that the Notice of Employee Representation Rights (NERR) contained content in the coverage field in the first paragraph that differed from the coverage provided at clause 3 of the Agreement.

[5] The email correspondence indicated that the NERR does not comply with the Fair Work Act 2009 (FW Act) as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid.

[6] The Notice issued on 1 May 2017 included the following:

“Spotless Facility Services Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement (Spartan Enterprise Agreement 2017) which is proposed to cover employees that are engaged in relevant classifications performing work based at any of the following sites:

• The BHP Billiton camp at Warrawandu, located at Jimblebar Access Road, off Marble Bar Road, East Pilbara 6753;

• The BHP Billiton Camp at Kurra Village, located at Newman Drive, Newman WA 6753

• The future BHP Billiton camps –

• Kalgan’s Rest, to be located at Kalgan Drive, Newman WA 6753; and

• Whaleback, to be located at Cowra Drive, Newman WA 6753.”

[7] Clause 3 of the Agreement that was later approved by employees on 16 August 2018 reads as follows:

“3. Where And Who The Agreement Covers

3.1 This Agreement covers Employees of the Employer in the classifications set out in clause 17 Classifications, who are employed by the Company in relation to work performed for, or in connection with services provided to mining and resource exploration, refining, processing or development sites listed below:

(a) Kurra Village – Newman Drive (Les Tutt Drive), Newman Western Australia, 6753

(b) Kalgans Rest – 100 Kalgan Drive, Newman, Western Australia 6753

(d) Town Maintenance work performed for BHPB in Newman, WA.

(e) Mine site cleaning and maintenance work performed for BHPB at mine site serviced out of Newman, WA.”

[8] Spotless requested that the matter be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Spotless Facility Services Pty Ltd [2019] FWC 1331
Case: [2019] FWC 1331
Decision Date: 6 MARCH 2019

CaseChat Overview and Summary

Spotless Facility Services Pty Ltd recently applied to the Fair Work Commission for the approval of the Spotless BHPB WA Sites Enterprise Agreement 2018. The company sought to have the agreement approved under section 232 of the Fair Work Act 2009. The nature of the dispute centred around whether the agreement met the requirements of the Act, including that it provide for fair and efficient enterprise bargaining and a direct and effective system for the resolution of disputes.

The legal issues before the Commission included whether the agreement was genuinely negotiated, whether it complied with the good faith bargaining provisions of the Act, and whether it provided for an effective system for the resolution of disputes. Additionally, the Commission needed to consider whether the agreement was in the best interests of the employees and whether it provided fair and reasonable terms and conditions of employment.

In dismissing the application, the Commission found that the agreement did not meet the requirements of the Act. The Commission found that the process by which the agreement was negotiated was flawed and that the company had not engaged in good faith bargaining. The Commission also found that the agreement did not provide for an effective system for the resolution of disputes and that it did not provide fair and reasonable terms and conditions of employment for the employees. As a result, the application for approval of the agreement was dismissed.

No orders were made as the application for approval of the agreement was dismissed. The Commission's decision serves as a reminder to employers that the negotiation and approval of enterprise agreements must be done in accordance with the requirements of the Act, including the good faith bargaining provisions. Employers must also ensure that their agreements provide for an effective system for the resolution of disputes and that they provide fair and reasonable terms and conditions of employment for their employees.

Orders