Application by Pilbara Logistics Pty Ltd - [2021] FWCA 6365

[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…

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 Application by Pilbara Logistics Pty Ltd

Details

AGLC: Application by Pilbara Logistics Pty Ltd [2021] FWCA 6365
Case: [2021] FWCA 6365
Decision Date: 20 OCTOBER 2021

CaseChat Overview and Summary

Pilbara Logistics Pty Ltd applied to the Fair Work Commission for the termination of the Pilbara Logistics (WA) Pty Ltd Port Hedland Enterprise Agreement 2012. The applicant argued that the enterprise agreement had become redundant, and its continued operation was no longer necessary or appropriate given the changed circumstances of the parties involved. The Commission was tasked with determining whether the agreement should be terminated and, if so, under what provisions and circumstances.

The central legal issue was whether the enterprise agreement had indeed become redundant and, if so, whether termination was appropriate. The applicant contended that the enterprise agreement was no longer serving its intended purpose due to significant changes in the business operations and the external economic environment. The Commission needed to assess whether these changes warranted the termination of the agreement and whether the provisions of the Fair Work Act supported such a decision.

The Commission examined the evidence presented by the applicant and concluded that the enterprise agreement had indeed become redundant. The changes in the business operations and the economic environment were substantial enough to render the agreement ineffective in achieving its intended purpose. The Commission found that the applicant had met the threshold for termination under section 237 of the Fair Work Act, which allows for the termination of an enterprise agreement if it is no longer serving its intended purpose. Consequently, the Commission ordered the termination of the Pilbara Logistics (WA) Pty Ltd Port Hedland Enterprise Agreement 2012, effective from a specified date.

Orders