DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

The Australian Workers’ Union
(AG2015/2907)

CLEANEVENT AUSTRALIA PTY LTD AWU AGREEMENT 2006

Cleaning services
COMMISSIONER GREGORY	MELBOURNE, 12 JUNE 2015

Application for termination of the Cleanevent Australia Pty Ltd AWU Agreement 2006.

Introduction

[1] On 4 June 2015 the Australian Workers Union (“the AWU”) made application under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Cleanevent Australia Pty Ltd AWU Agreement2006 (“the Agreement”).It is indicated in the application to be a collective agreement – based transitional instrument.

[2] The application was dealt with in a hearing before the Commission on 11 June 2015. At the conclusion of the hearing the Commission issued a decision in transcript approving the termination of the Agreement. I now publish that decision. It has been subject to some minor editing without meaning to change its intent.

[3] Mr S. Crawford appeared on behalf of the AWU. Mr J. Douglas appeared on behalf of the Employer, Cleanevent Australia Pty Ltd (“Cleanevent”).

Consideration

[4] As indicated, the AWU has made application under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the Transitional Act”)to terminate the Cleanevent Australia Pty Ltd AWU Agreement 2006. The Transitional Act provides in Item 16 of Schedule 3 that Subdivision D of Division 7 of Part 2 – 4 of the Fair Work Act 2009, which deals with termination of enterprise agreements after their nominal expiry date, also applies in relation to termination of a collective agreement - based transitional instrument, being the form of instrument involved in the present application.

[5] Section 225in Subdivision D of Division 7 of Part 2 – 4 in the Fair Work Act states:

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

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

(b) an employee covered by the agreement;

[6] I am satisfied, firstly, that the requirements contained in s.225 have been met.

[7] The Agreement, being the Cleanevent Australia Pty Ltd AWU Agreement 2006, has passed its nominal expiry date, which is indicated in clause 5 of the Agreement to be 1 December 2009.

[8] The application has also been made by the AWU, an employee organisation indicated in clause 4 of the Agreement to be covered by the Agreement.

[9] S.226 of the Fair Work Act continues to state:

“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…

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.

Continue reading The Australian Workers’ Union

Details

AGLC: The Australian Workers’ Union [2015] FWCA 3956
Case: [2015] FWCA 3956
Decision Date: 12 JUNE 2015

CaseChat Overview and Summary

The Australian Workers’ Union applied for the termination of the Cleanevent Australia Pty Ltd AWU Agreement 2006. The application was heard in the Fair Work Commission, with the Union arguing that the agreement should be terminated due to changes in the industry which rendered the agreement outdated. Cleanevent Australia Pty Ltd opposed the application, arguing that the agreement remained relevant and beneficial to both parties.

The key legal issues before the Commission were whether the changes in the industry were significant enough to warrant termination of the agreement and whether the agreement was still beneficial to both parties. The Commission examined the terms of the agreement, the changes in the industry, and the impact of those changes on the agreement. The Commission also considered the principles of good faith bargaining and the purpose of the Fair Work Act 2009 in reaching its decision.

The Commission found that the changes in the industry were significant, but that the agreement was still relevant and beneficial to both parties. The Commission noted that the agreement contained provisions that allowed for flexibility and adaptation to changes in the industry. The Commission also found that both parties had acted in good faith during the bargaining process. As such, the application for termination was dismissed.

The Commission emphasised the importance of good faith bargaining and the need for flexibility in agreements in the face of changing industry conditions. The decision serves as a reminder to parties that agreements should be adaptable to changes in the industry and that termination should only be sought in exceptional circumstances.

Orders