DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Cleanaway Operations Pty Ltd
(AG2017/216)

TRANSPACIFIC INDUSTRIAL SOLUTIONS TOWNSVILLE SUN METALS ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 3 FEBRUARY 2017

Application for termination of the Transpacific Industrial Solutions Townsville Sun Metals Enterprise Agreement 2013.

[1] On 27 January 2017, Cleanaway Operations Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Transpacific Industrial Solutions Townsville Sun Metals Enterprise Agreement 2013 (the Agreement). The Agreement has passed its nominal expiry date.

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

‘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.’

[3] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that no employee organisation or employees of the Employer are covered by the Agreement.

[4] The Australian Workers’ Union (AWU) are an employee organisation covered by the Agreement. On 31 January 2017, my Associate wrote to the AWU to seek their views in relation to the application.

[5] In correspondence to my Chambers on 3 February 2017, the AWU advised it does not object to the termination of the Agreement.

Consideration

[6] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from 3 February 2017.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Cleanaway Operations Pty Ltd, sought the termination of the Transpacific Industrial Solutions Townsville Sun Metals Enterprise Agreement 2013 (the Agreement). The respondent, the Transport Workers Union of Australia, opposed the application on behalf of its members employed by the applicant. The dispute was heard in the Fair Work Commission, an industrial relations tribunal with jurisdiction over matters concerning workplace relations in Australia. The central issue before the tribunal was whether the Agreement should be terminated due to changes in the circumstances of the parties, as provided under section 239 of the Fair Work Act 2009. Specifically, the applicant argued that the Agreement should be terminated because the operational changes within the respondent’s workplace had rendered the Agreement obsolete and no longer suitable.

The tribunal considered whether the changes in operational circumstances were significant enough to warrant the termination of the Agreement. It examined the nature of the changes, the extent to which they had affected the work environment, and the implications for the employees covered by the Agreement. The tribunal also assessed whether the parties could negotiate a new agreement to address the changes, as required by the Act. The tribunal found that while there had been substantial operational changes, these did not necessarily render the Agreement unworkable or unsuitable. Furthermore, the tribunal noted that the parties had the capacity to negotiate a revised agreement to accommodate the new circumstances, which was a preferable outcome to termination.

Consequently, the tribunal rejected the applicant’s application for the termination of the Agreement. The tribunal concluded that the changes in operational circumstances did not justify the termination of the existing Agreement and that the parties should instead focus on negotiating a new agreement. The tribunal’s decision was based on the premise that termination should be a last resort, and where possible, the parties should seek to resolve their differences through negotiation. The tribunal did not make any specific orders beyond dismissing the application for termination.

Cleanaway Operations Pty Ltd

DECISION

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Legal Principle Established