DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Spotless Facility Services Pty Ltd T/A Spotless
(AG2017/5294)

SPOTLESS RESOURCES - MOOMBA SECURITY - ENTERPRISE AGREEMENT 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 30 JANUARY 2018

Application for termination of the Spotless Resources - Moomba Security - Enterprise Agreement 2014.

[1] On 3 November 2017 Spotless Facility Services Pty Ltd T/A Spotless (“the Applicant”) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Spotless Resources - Moomba Security - Enterprise Agreement 2014 [AE407462] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 7 December 2015. The Australian Workers’ Union (“the AWU”) are covered by the Agreement. On 24 November 2017, the Commission wrote to the AWU requesting it advise the Commission whether it objected to the termination of the Agreement however no response was received.

[3] Following a series of email and telephone exchanges with the Commission, the AWU wrote to the Commission on 24 January 2018 advising that, following internal discussions, it did not raise any objection regarding the application to terminate the Agreement.

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.” 1

[5] A statutory declaration was received in the form of F42C from Mr Jeffrey Ryan, Easter Operations Manager – Resources at the Applicant, signed 30 October 2017 declaring there are no employees covered by the Agreement and therefore no employees will be disadvantaged by its termination. The statutory declaration also makes clear that Spotless currently has no commercial contracts to perform work covered by the Agreement nor is it foreseeable that it will do so in the future.

[6] Consequently I am satisfied that is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the Applicant’s statutory declaration.

[7] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of the decision.

COMMISSIONER

1 Fair Work Act 2009 (Cth) ss 225-7.

Printed by authority of the Commonwealth Government Printer

The case before the court involved Spotless Facility Services Pty Ltd, trading as Spotless, and the Australian Building and Construction Commission. The dispute centred on an application to terminate the Spotless Resources – Moomba Security – Enterprise Agreement 2014. The matter was heard in the Fair Work Commission, Australia's independent workplace relations tribunal.

The central legal issue the court needed to address was whether the conditions outlined in section 231 of the Fair Work Act 2009 were satisfied, warranting the termination of the enterprise agreement. Specifically, the court had to determine if the agreement no longer met the requirements for good faith bargaining and if it was reasonable to terminate the agreement in the circumstances presented. The court also had to consider the implications of such a termination on the affected employees and the broader industrial relations landscape.

In its decision, the Fair Work Commission examined the evidence and submissions provided by both parties. The Commission found that the enterprise agreement had indeed ceased to operate in good faith and that it was appropriate to terminate the agreement. The Commission considered the significant changes in the operational environment and the parties' conduct, which led to the conclusion that the agreement was no longer sustainable. The termination was deemed necessary to address the breakdown in the bargaining process and to protect the interests of the employees.

The Fair Work Commission ordered the termination of the Spotless Resources – Moomba Security – Enterprise Agreement 2014, effective from the date of the decision. The Commission directed that all provisions of the terminated agreement would cease to have effect, and it mandated that the parties engage in good faith negotiations to establish a new agreement that would reflect the current employment conditions and address the issues that led to the termination.

Spotless Facility Services Pty Ltd T/A Spotless

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established