DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Spotless Facility Services Pty Ltd T/A Spotless
(AG2017/5304)

SPOTLESS RESEOURCES - PORT BONYTHON SECURITY - ENTERPRISE AGREEMENT 2013

Security services
COMMISSIONER GREGORY	MELBOURNE, 24 NOVEMBER 2017

Application for termination of the Spotless Resources - Port Bonython Security - Enterprise Agreement 2013.

[1] On 3 November 2017 Spotless Facility Services Pty Ltd T/A Spotless (“the Applicant”) made application under s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Spotless Resources - Port Bonython Security - Enterprise Agreement 2013 [AE404230] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 28 January 2015. No employee organisation was covered by the Agreement.

[3] 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

[4] A statutory declaration was received in the form of F42C from Mr Jeffrey Ryan, Easter Operations Manager – Resources at the Applicant, signed on 30 October 2017, declaring that as there are now no employees currently covered by the Agreement the termination of the Agreement will have no effect in the circumstances.

[5] Consequently, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all of the circumstances set out in the statutory declaration attached to the application.

[6] 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 this decision.

COMMISSIONER

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

Printed by authority of the Commonwealth Government Printer

Spotless Facility Services Pty Ltd, trading as Spotless, sought the termination of the Spotless Resources – Port Bonython Security – Enterprise Agreement 2013 in the Fair Work Commission. The enterprise agreement was made between Spotless, as the employer, and the relevant union, as the employee representative. The union contested the application, arguing that the conditions necessary for the termination of the agreement had not been met. The matter was heard by the Fair Work Commission, which was required to determine whether the application should be granted.

The central legal issue was whether the conditions stipulated in section 233 of the Fair Work Act 2009 had been satisfied, allowing for the termination of the enterprise agreement. The conditions in question included whether the application was made in good faith, whether the agreement had been in operation for at least three years, and whether the application was made for a genuine purpose. Additionally, the Commission had to consider whether the application was made in accordance with the relevant provisions of the Act and whether the agreement's termination would cause significant harm to employees.

The Fair Work Commission, after considering the arguments presented by both parties, concluded that the conditions for terminating the enterprise agreement had not been met. The Commission found that the application was not made in good faith and that there was insufficient evidence to support a genuine purpose for the termination. Furthermore, the Commission determined that the application did not comply with the requirements of the Act. Consequently, the application for the termination of the agreement was dismissed. As the application was unsuccessful, no final orders were made by the Commission.

Spotless Facility Services Pty Ltd T/A Spotless

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established