The Australian Workers’ Union

[2015] FWCA 3956

[2015] FWCA 3956

FAIR WORK COMMISSION

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;

(c) an employee organisation 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 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.

[10] I now deal with the various requirements contained in s.226, beginning with those contained in s.226(a). As the AWU indicated in its submissions, the notion of what constitutes the public interest has been considered in a number of decisions of this Tribunal, including recently in the Full Bench decision in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd 1 (“Aurizon”). That matter also involved an application to terminate an existing Enterprise Agreement.

[11] The Full Bench in Aurizon cited with approval an earlier Full Bench decision of the then Australian Industrial Relations Commission in the matter of Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 2 (“Kellogg Brown”). Without going to the decisions in detail the Full Bench in Kellogg Brown held that consideration of the public interest involves something distinct from the interests of the parties covered by the particular Agreement3 in question, although it acknowledged both might happen to be simultaneously affected.

[12] It determined that the notion of the public interest refers, instead, to matters that might affect the public more broadly as a whole, such as the attainment of the Objects of the Act, the pursuit of desirable economic outcomes, or the maintenance of appropriate industrial standards. 4

[13] It also emphasised that consideration of the public interest might involve balancing countervailing public interests. 5

[14] The decisions also make clear that all of the relevant circumstances should be taken into account in considering what is in the public interest, but for the most part the Commission should be guided by the likely foreseeable consequences for the public interest of termination of an Agreement, rather than being guided by speculation about possible consequences.

[15] I have considered the present application in the light of the principles established in these decisions. I am satisfied in response that the circumstances involved in this matter do not provide evidence of anything that indicates it would be contrary to the public interest to terminate the Agreement. By contrast they suggest instead it would be in the public interest to terminate the Agreement and in this context I refer, by way of example, to the promotion of the Objects of the Fair Work Act, and those contained in s.3(b), in particular.

[16] Section 226(b) next requires the Commission to have regard to all the circumstances involved including, firstly, the views of the employees, each employer, and each employee organisation, covered by the Agreement.

[17] I am satisfied, firstly, that the views of the AWU in regard to termination of the Agreement are self evident given that it is the Applicant in this matter.

[18] The AWU has also provided 2 signed statements in support of the application. The first (exhibit “AWU 1”) was provided by Mr Daniel Walton, the Assistant National Secretary of the AWU, who is based in New South Wales. The other (exhibit “AWU 2”) was provided by Mr Steven Bonica, an Organiser employed by the AWU and based in Victoria. Both statements indicate Mr Bonica and Mr Walton have been in contact with a number of employees covered by the existing Agreement, and have been informed in each case by those employees they support the termination of the existing Agreement. The AWU also indicated in its submissions that no employee covered by the existing Agreement that it has been in contact with opposes the present application.

[19] Section 226(b) finally requires the Commission to have regard to the “circumstances” of the employees, employer, and employee organisation covered by the Agreement, including the likely effect termination will have on each of them.

[20] In dealing with this requirement it is evident at the outset from the submissions of both the AWU and Cleanevent that if the Agreement is terminated the employees will be then be covered by the terms and conditions contained in a Modern Award. However, the AWU believes the relevant modern award is the Cleaning Services Award 2010 [MA000022], whereas Cleanevent believes it is the Amusement, Events and Recreation Award 2010 [MA000080].

[21] The AWU in its submissions provided an amount of detail by way of comparison between the entitlements contained in the Agreement, and those contained in the current Cleaning Services Award 2010. It included comparisons of the wage rates for both weekly and casual employees. 6 It submits these comparisons clearly indicate the employees will be better off under the terms and conditions contained in the Award, as opposed to those contained in the existing Agreement. However, it is also noted that the provisions contained in Item 13 of Schedule 9 of the Transitional Actoperate to ensure the base rates of pay in the Agreement are not permitted to fall below the base rates of pay contained in the relevant Award.

[22] As indicated, Cleanevent also acknowledges in its submissions that a Modern Award will cover the employees if the Agreement is terminated, but it submits the relevant Award is the Amusement, Events and Recreation Award 2010, rather than the Cleaning Services Award 2010. However, I am satisfied it is not necessary in the context of this application to determine which Modern Award has coverage. It is instead sufficient to conclude at this point, in the context of this application, that a Modern Award will cover the employees if the Agreement is terminated. In addition, I am satisfied a comparison between the terms and conditions contained in either of the Cleaning Services Award 2010 or the Amusement, Events and Recreation Award 2010, and those contained in the existing Agreement, indicates the employees will gain the benefit of a range of additional entitlements under the terms of either Award, compared to those now contained in the Agreement, if the Agreement is terminated.

[23] I am satisfied, therefore, in considering the circumstances of the employees, including the likely effect termination of the Agreement will have on each of them, that it can be concluded without obvious exception that the employees will benefit by gaining an entitlement to terms and conditions of employment under either Award that are generally superior to those now provided under the terms and conditions contained in the Agreement, if it is terminated. I also note in this context, by way of confirmation, that Cleanevent indicated in response to a question from the Commission that if the Agreement is terminated it will apply the terms and conditions contained in the Amusement, Events and Recreation Award 2010 until such time as it is determined that another Award has coverage, or a new enterprise agreement is negotiated and put in place.

[24] In turning to consider the circumstances of Cleanevent it follows that if the Agreement is terminated a Modern Award will have coverage in its place. However, Cleanevent indicated in its submissions it does not oppose the application. It also indicated it has endeavoured over a significant period of time to negotiate and put in place a new enterprise agreement to replace the existing Agreement. It also indicated this outcome continues to be its preferred option, and it now intends to continue to pursue negotiations to this end.

[25] In this context it is simply noted at this point that termination of the existing Agreement obviously does not preclude any party from seeking to commence negotiations to establish a new enterprise agreement under the framework provided for by the existing legislation, if it chooses to do so.

[26] I am also required under s.226(b) to have regard to the circumstances of the AWU, being an employee organisation covered by the existing Agreement. Nothing has been put in these proceedings that points to any relevant considerations in this context.

[27] It follows from the requirements contained in ss.225 and 226 of the Act, and the conclusions I have come to about each of those requirements in the circumstances of this matter, that I am now required to terminate the Agreement. Section 227 of the Act provides that any decision to terminate an Agreement takes effect from the date specified in the decision. I have noted the submissions made by Cleanevent for a brief period of time to be provided to assist in an appropriate administrative transition, in the event the existing Agreement is terminated. I am satisfied in response it is appropriate to provide a brief period from the date of this decision before termination of the Agreement takes effect.

[28] In accordance with the provisions contained in ss. 225, 226 and 227 of the Act the Cleanevent Australia Pty Ltd AWU Agreement 2006 is terminated with effect from 18 June 2015.

COMMISSIONER

 1   [2015] FWCFB 540

 2 (2005) 139 IR 34

 3   Ibid at paragraph 129

 4   Ibid

 5   Ibid at paragraph 130

 6   AWU 3

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