Spotless Facility Services Pty Ltd T/A Spotless

[2017] FWCA 6791

[2017] FWCA 6791

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Spotless Facility Services Pty Ltd T/A Spotless

(AG2017/5606)

Spotless Resources Agreement Tasmania 2014

Cleaning services
Deputy President Clancy	MELBOURNE, 19 DECEMBER 2017

Application for termination of the Spotless Resources Agreement Tasmania 2014.

1. On 20 November 2017, Spotless Facility Services Pty Ltd (Spotless) filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Spotless Resources Agreement Tasmania 2014 (the Agreement).  The nominal expiry date of the Agreement was 30 June 2016.

1. The Act relevantly provides 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;
(c)       an employee organisation 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. A statutory declaration filed by Ms Judith Blinkhorn, General Manager Business, Industry & Education, confirmed there are currently no employees covered by the Agreement.  Ms Blinkhorn said in September 2017, Spotless ceased to provide services covered by the Agreement.  Further, it was said there would be no effect on Spotless if the Agreement was terminated.  It was submitted by Ms Blinkhorn that termination of the Agreement would not be contrary to the public interest because:

·   There are no employees covered by the Agreement, therefore no employees will be disadvantaged by the termination of the Agreement;

·   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;

·   If any employee was employed by Spotless in the future to perform work which is currently covered by the Agreement, they would be covered by the Cleaning Services Award 2010 and Security Services Industry Award 2010 (the Awards) and entitled to minimum terms and conditions in accordance with the Awards, together with the National Employment Standards.  There is therefore a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions (consistent with s.3(b) of the Act) which would apply to any employees who might be employed after the Agreement is terminated;

·   The parties to the Agreement expressly contemplated that termination of the Agreement was a relevant possibility once the Agreement reached its nominal expiry date (as evidenced by Clause 3 of the Agreement);

·   Bargaining for a future enterprise agreement would also remain available should there be any employees which commence employment for Spotless undertaking cleaning or security duties in Tasmania (consistent with s.3(f) of the Act); and

·   There is no detrimental effect on the public by the termination of the Agreement.

1. On 23 November 2017, I caused an email to be sent to the Australian Workers’ Union (AWU), an organisation covered by the Agreement, seeking its view in respect of the Application.  The AWU confirmed on 15 December 2017 that it did not oppose the Application made by Spotless.

1. I am satisfied Spotless is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

1. In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

1. In accordance with s.227 of the Act, the termination will take effect from 19 December 2017.

DEPUTY PRESIDENT

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