DECISION

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

Cleanaway Operations Pty Ltd
(AG2016/7776)

TRANSPACIFIC INDUSTRIAL SOLUTIONS MT ISA ENTERPRISE AGREEMENT 2010

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 19 DECEMBER 2016

Application for termination of the Transpacific Industrial Solutions Mt Isa Enterprise Agreement 2010.

[1] On 16 December 2016, Cleanaway Operations Pty Ltd (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Transpacific Industrial Solutions Mt Isa Enterprise Agreement 2010 (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.

Consideration

[4] 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.

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

[6] 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.

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

[8] The termination will take effect from 19 December 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Cleanaway Operations Pty Ltd, the Fair Work Commission was asked to decide on an application for the termination of the Transpacific Industrial Solutions Mt Isa Enterprise Agreement 2010. The applicant, Cleanaway Operations, sought the termination of the enterprise agreement on the basis that significant changes in the business environment and operational challenges had rendered the agreement unworkable. The respondent, Transpacific Industrial Solutions, contested the application, arguing that the agreement remained relevant and effective in addressing the needs of its members.

The primary legal issue before the Commission was whether the changes in the business environment and operational challenges were so significant as to render the enterprise agreement unworkable, thereby justifying its termination. This involved assessing the balance between the rights of employers and employees as protected under the Fair Work Act 2009 and the principles of good faith bargaining. The Commission needed to determine if the changes were indeed so substantial that they fundamentally altered the basis upon which the agreement was made, and if so, whether the agreement could still be considered fair and reasonable.

In delivering its decision, the Commission considered the evidence provided by both parties regarding the nature and extent of the changes in the business environment and operational challenges. The Commission found that while the changes had indeed placed significant pressures on the operation of the agreement, they did not constitute a fundamental alteration to the agreement’s basis. The Commission emphasised the importance of maintaining the integrity of the enterprise agreement and the process of good faith bargaining. Accordingly, the application for termination was dismissed, affirming the continued validity of the Transpacific Industrial Solutions Mt Isa Enterprise Agreement 2010.

The Fair Work Commission's final order was that the application for termination of the Transpacific Industrial Solutions Mt Isa Enterprise Agreement 2010 be dismissed, thereby upholding the agreement and its continued application. This decision underscored the principle that enterprise agreements should not be lightly terminated and highlighted the need for continued efforts towards good faith bargaining to address any challenges that may arise.

Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established