DECISION

Fair Work Act 2009
Section 225 - Application for termination of an enterprise agreement after its nominal expiry date

Spotless Facility Services Pty Ltd T/A Ensign
(AG2019/105)

ENSIGN DUDLEY PARK SA (MAINTENANCE) ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 19 FEBRUARY 2019

Application for termination of the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2014

[1] On 18 January 2019, Spotless Facility Services Pty Ltd made an application to terminate the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2014 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] I issued directions on 23 January 2019.

[3] This matter was the subject of a hearing on 19 February 2019 at which time I heard from Laura Gordon, Industrial Relations Manager, on behalf of the applicant employer, Stuart Gordon, of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU), Peter Lamps of the Australian Workers’ Union (AWU) and Jess Rogers of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[4] Notice of this hearing was provided to the AMWU, AWU and CEPU being a bargaining representative for the Agreement and covered by it. The AMWU, AWU and CEPU do not oppose the application.

[5] The applicant employer is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[6] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 13 February 2015 1. It was approved to operate from 21 February 2014 with a nominal expiry date of 1 July 2017. It has now passed its nominal expiry date. The ground on which the application is made is that persons are no longer employed under the Agreement nor likely to be so employed, and that the Agreement has been replaced by the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2018.

[7] I have considered the information provided in the application and by Ms Gordon pursuant to section 225 of the FW Act. This includes Statutory Declarations of Jonathon Piers Northorpe dated 18 January 2018 and Laura Gordon dated 4 February 2019. I note that the statutory declaration of Mr Northorpe says as follows:

“Spotless submits that it is in the public interest to terminate the Agreement, as the instrument has been replaced by the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2018 (AG2018/5313) (the “replacement agreement”).

The replacement agreement covers the same scope of work, but has been made with a separate legal entity (Ensign Services (Aust) Pty Ltd). The change in legal entity is because the Agreement was made with the incorrect entity initially.

We respectfully request the Agreement be terminated to ensure that the Agreement can never apply again, consistent with what would have otherwise occurred under s 58 (2)(e).”

[8] I also note the Statutory Declaration of Laura Gordon says as follows:

“1. An application under s. 225 of the Fair Work Act 2009 (Cth) has been made by Spotless Facility Services Pty Ltd TIA Ensign to terminate the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2014. The Fair Work Comission (sic) matter number is AG2019/105.

2. I have authority to provide this statutotry (sic) declaration on behalf of the Applicant in relation to the matter.

3. There are no employees covered by the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2014 (the Agreement).

4. A copy of the Commission Directions were provided to the named employee organisations covered by the Agreement on Wednesday 23 January 2019 by email.”

[9] I have considered the information provided in the application and by Ms Gordon pursuant to section 225 of the FW Act. This includes the Statutory Declarations of Mr Northorpe and Ms Gordon. I am satisfied as to each of the matters contained in section 226 of the FW Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. No adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[10] The termination will come into effect from 11.59pm on 19 February 2019. An Order to this effect will be issued.

DEPUTY PRESIDENT

1 [2015] FWCA 1007

Printed by authority of the Commonwealth Government Printer

The case involves Spotless Facility Services Pty Ltd, trading as Ensign, and the Australian Manufacturing Workers' Union. The dispute pertains to the termination of the Ensign Dudley Park SA (Maintenance) Enterprise Agreement 2014. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the employer had provided sufficient evidence to justify the termination of the enterprise agreement under section 241 of the Fair Work Act 2009. The Commission had to determine if the employer demonstrated that there were changed circumstances warranting a change to the agreement.

The Fair Work Commission considered the employer's application and the arguments presented by both parties. The employer argued that changes in the business environment, including financial difficulties and operational changes, necessitated alterations to the enterprise agreement. The union contended that the employer had not provided adequate evidence to support the termination and that the changes sought were not significant enough to warrant such action. After reviewing the evidence, the Commission found that the employer had not provided sufficient evidence to demonstrate that there were changed circumstances warranting the termination of the enterprise agreement. The Commission concluded that the employer's financial difficulties and operational changes did not constitute a fundamental change in the bargaining relationship that would justify terminating the agreement.

Consequently, the Fair Work Commission dismissed the employer's application for termination of the enterprise agreement. The decision reinforces the importance of providing comprehensive evidence when seeking to terminate an enterprise agreement and underscores the need for employers to demonstrate significant changes in circumstances that fundamentally alter the bargaining relationship.

Spotless Facility Services Pty Ltd T/A Ensign

DECISION

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