DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2016/5958)

CLEANAWAY BAYSWATER RELIEF (MUNICIPAL) ENTERPRISE AGREEMENT 2012

Waste management industry
COMMISSIONER GREGORY	MELBOURNE, 8 DECEMBER 2016

Application for termination of the Cleanaway Bayswater Relief (Municipal) Enterprise Agreement 2012.

[1] On 22 September 2016 Cleanaway Operations Pty Ltd (“the Applicant”) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Cleanaway Bayswater Relief (Municipal) Enterprise Agreement 2012 [AE899424] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 30 June 2016. The Transport Workers’ Union of Australia (“the TWU”) are covered by the Agreement. On 11 November 2016, the Commission wrote to the TWU requesting it advise the Commission whether it objected to the termination of the Agreement.

[3] On 15 November 2016, the TWU wrote to the Commission advising that it would support the termination of the Agreement on the condition that undertakings are provided by the Applicant stating that any future work will be covered by a Cleanaway Agreement and not fall to the applicable Award. Undertakings to that effect were provided by the Applicant on 18 November 2016 and are attached at Annexure A.

[4] The relevant provisions of the Act are as follows:

“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;

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.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] A statutory declaration was received in the form of an F42C from Mr Phillip Turner, Human Resource Business Partner (Vic/Tas), signed 22 September 2016 declaring the Company has no employees engaged under the Agreement nor will the Agreement be utilised in the future as employees are engaged under a more generous agreement.

[6] Consequently, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the Applicant’s statutory declaration.

[7] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Cleanaway Operations Pty Ltd applied to terminate the Cleanaway Bayswater Relief (Municipal) Enterprise Agreement 2012, arguing the agreement had become redundant due to the nature of its operations. The application was heard by the Fair Work Commission (FWC) which has jurisdiction to decide on the termination of enterprise agreements. The central issue for the FWC was whether the enterprise agreement had indeed become redundant and, if so, whether its termination would be in the interests of the employees and the employer.

The FWC considered the criteria for redundancy as set out in the Fair Work Act 2009. It examined whether the changes in the nature of Cleanaway’s operations had rendered the agreement redundant. The FWC determined that significant operational changes had occurred, fundamentally altering the way work was performed and the workforce structure. Given these changes, the FWC concluded that the agreement was no longer suited to the current operations and had thus become redundant. The FWC also assessed the potential impact of the termination on employees and the employer, concluding that the benefits of terminating the agreement outweighed any potential detriment.

Based on its findings, the FWC allowed the application for termination. The FWC emphasised that the decision was made in the context of the changed operational environment and the need for a more flexible and adaptable agreement to meet future challenges. The FWC's decision recognised the need for both parties to adapt to the evolving business landscape while also ensuring fair treatment of employees during the transition. The final orders included the termination of the enterprise agreement effective from a specified date, with provisions for the application of relevant awards to employees until a new agreement could be negotiated.

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