Application by Pilbara Logistics Pty Ltd
[2021] FWCA 6365
•20 OCTOBER 2021
| [2021] FWCA 6365 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Application by Pilbara Logistics Pty Ltd
(AG2021/6980)
| DEPUTY PRESIDENT BINET | PERTH, 20 OCTOBER 2021 |
Application for termination of the Pilbara Logistics (WA) Pty Ltd Port Hedland Enterprise Agreement 2012
[1] Cleanaway Operations Pty Ltd T/A Cleanaway (Cleanaway Operations) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Pilbara Logistics (WA) Pty Ltd Port Hedland Enterprise Agreement 2012 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).
[2] The Agreement was approved by Commissioner Williams pursuant to section 185 of the FW Act, on 6 June 2012 and, commenced operation on 13 June 2012. The Agreement had a nominal expiry date of 6 June 2016.
[3] The parties to the Agreement are Pilbara Logistics (WA) Pty Ltd (Pilbara Logistics WA) and employees of Pilbara Logistics WA engaged in the Town of Port Hedland in one of the classifications listed in Appendix 1 of the Agreement (Employees).
[4] There are no employee organisations are covered by the Agreement.
[5] In support of the Application, Cleanaway filed a statutory declaration by Ms Louise Weaver, Senior Human Resources Business Partner (Weaver Declaration).
[6] On 6 September 2021, directions were issued with respect to the Application (Directions). The Directions required Cleanaway to file an outline of submissions in support of the Application and any evidence on which Cleanaway sought to rely. The Directions also required Cleanaway to file submissions and evidence as to how Cleanaway has standing to make the Application.
[7] Cleanaway was also invited to make oral submissions in relation to the Application by 4pm on Thursday 16 September 2021. Cleanaway did not seek to be heard and were content for the Application to be determined on the papers.
Background
In or around August 2014 Pilbara Logistics Pty Ltd (PTES) acquired Pilbara Logistics WA.
On 26 August 2014, the FWC made an order pursuant to section 318(1)(b) of the FW Act that the Agreement cover PTES. 1
ln May 2018, Cleanaway Waste Management Limited acquired Tox Free Solutions Pty Ltd (ABN 27 058 596 124) and its associated entities including PTES.
Cleanaway Waste Management Limited is Australia’s largest national waste, recycling, industrial and liquids service provider with a substantial network of transfer stations, landfills, liquid treatment plants and refineries. Cleanaway Waste Management Limited is listed on the ASX and employs approximately 6,000+ employees. The company provides solutions such as Local Government, retail and hospitality, commercial property facilities, mining and resources, health and aged care, schools and universities, automotive and manufacturing, infrastructure, transport, utilities and defence.
Cleanaway Waste Management Limited is the parent company of Cleanaway Operations. Cleanaway Operations is the employing entity for Cleanaway Waste Management Limited and its associated entities.
Cleanaway Operations provides waste management services in the Pilbara region, including Port Hedland. Employees employed to provide waste management services in the Pilbara region are employed pursuant to the Cleanaway Solids Waste Services Pilbara Region Enterprise Agreement 2020 (Cleanaway Agreement).
The Cleanaway Agreement was renegotiated and commenced on 4 May 2021, with an expiry date of 1 November 2023.
Cleanaway Operations employs 45 employees pursuant to the Cleanaway Agreement.
Cleanaway Operations submit that the Cleanaway Agreement offers more competitive and contemporary conditions and provisions and rates of pay in contrast to the Agreement. In addition to the superior terms and conditions of the Cleanaway Agreement, the Cleanaway Agreement goes to eliminating any inconsistencies that exist between the Agreement and the Waste Management Award 2020 and the FW Act.
Ms Weaver had made a statutory declaration stating that:
a. There are no employees employed by PTES and no plans that it employee anyone in the foreseeable future.
b. There are no employees currently covered by the Agreement and no plans to employ any employees covered by the Agreement in the foreseeable future.
On 9 September 2021 Cleanaway Operations applied for an order that the name of the applicant to these proceedings be amended to PTES.
On 19 October 2021 pursuant to section 587 of the FW Act an order was issued changing the name of the applicant to these proceedings from Cleanaway Operations to PTES.
Legislation
[8] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.
[9] Section 225 of the FW Act provides that:
“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.”
[10] The Agreement has passed its nominal expiry date. PTES is an employer covered by the Agreement. I am therefore satisfied that PTES has standing to make the Application pursuant to section 225(a) of the FW Act.
[11] Section 226 of the FW Act states:
“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.”
Is it contrary to the public interest to termination the Agreement?
[12] Section 226(a) requires the FWC to be satisfied that it is not contrary to the public interest to terminate the Agreement.
[13] This requires the FWC to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.2
[14] The object of the FW Act is set out in section 3 of the FW Act, as follows:
“3. Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
…
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders;
…
(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;
…”
[15] The specific objects in section 171 of the FW Act inform how the general object in section 3 of the FW Act is to be satisfied in the context of matters dealt with in Part 2-4 of the FW Act:
“171. Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
[16] The public interest is distinct in nature from the interests of those covered by the agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest but those views should not be given any independent weight.3
[17] The ascertainment of what is not in the public interest does not involve the mere identification of a consequence of the termination of the agreement that is arguably contrary to the public interest. The ascertainment of the public interest may involve balancing countervailing public interests.4
[18] There is no positive onus on the applicant to persuade the FWC that there are positive benefits to the public interest arising from the termination. In Geelong Wool Combing Ltd (AIRC) 5 September 2003, Commissioner Wheelan said:
“… the Commission must be persuaded that termination is contrary to the public interest [and] in the absence of any effect of termination which is contrary to the public interest it is not necessary to persuade the Commission that there are positive benefits to the public interest arising from the termination.”
[19] Cleanaway submits that there are no matters contrary to the public interest in terminating the Agreement and in fact the termination of the Agreement is in the public interest because:
a. The Agreement has past its nominal expiry date and will not be renegotiated in the foreseeable future.
b. The Agreement’s terms and conditions cannot be expected to continue unaltered in perpetuity after it has passed its expiry date. The FW Act contemplates the terms and conditions of the Agreement may be altered by making a new agreement or by terminating the existing Agreement.
c. There are no employees covered by the Agreement.
d. Terminating the Agreement will not result in changes in existing employment levels or adversely affect future employment opportunities within the Pilbara region; including Port Hedland.
e. Pilbara Logistics Pty Ltd is not an employing entity of Cleanaway Waste Management Limited and will not employ employees into the foreseeable future.
f. Cleanaway Operations is the employing entity for Cleanaway Waste Management Limited.
g. The Cleanaway Agreement offers more competitive and contemporary conditions and
provisions and rates of pay in contrast to the Agreement; maintaining proper industry standards.
h. The Cleanaway Agreement removes any problematic interactions between the Agreement and the operation of the Waste Management Award 2020 and the FW Act; maintaining proper industry standards.
[20] Based on the submissions of Cleanaway and the evidence before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
What are the views of the Employees covered by the Agreement?
There are currently no employees performing work covered by the Agreement. All Cleanaway employees in Port Hedland are now covered by the Cleanaway Solid Waste Services Pilbara Region Enterprise Agreement 2020.
What are the views of the Employee Organisation covered by the Agreement?
[21] The Agreement does not cover any employee organisation.
What are the views of the Employer covered by the Agreement?
[22] Cleanaway wish to terminate the Agreement.
What are the circumstances of the Employer covered by the Agreement?
[23] Cleanaway do not employ any employees under the Agreement. Employees who deliver waste management services in the Pilbara region (including Port Hedland) are employed under the Cleanaway Agreement. Cleanaway say that the Agreement is not fit for purpose because the Cleanaway Agreement offers more competitive and contemporary conditions and provisions and rates of pay in contrast to the Agreement; maintaining proper industry standards.
Is it appropriate to terminate the Agreement taking into all the circumstances?
[24] In assessing the views and circumstances of the parties it is important to remember that:
“Taking into account the views and circumstances of the parties involves far more than an expression of their views in support or opposition to termination. It should involve a reason for their views and the validity of their concerns.” 5
[25] I am satisfied that the views of Cleanaway that the Agreement should be terminated are valid. The Agreement passed its nominal expiry date some time ago and its terms and conditions are not comparable to more recently approved enterprise agreements.
Conclusion
[26] For the reasons enunciated above, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
[27] Taking into account all the circumstances, including the views and circumstances of Cleanaway, I am satisfied that it is appropriate to terminate the Agreement.
[28] Accordingly, the Agreement is terminated. The termination is to take effect on and from the date of this Decision. An Order to this effect will be issued in conjunction with this Decision.6
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE894401, PR735087>
1 PR554721
2 Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40 – 41.
3 Ibid.
4 Kellogg Brown & Root Pty Ltd & Ors and Esso Australia Ltd (2005) 139 IR 34 referred to the decision of the High Court of Australia in Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393.
5 Energy Resources Australia Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWA 2434, [16].
6 PR735088.
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