DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2016/6674)

CLEANAWAY (WASTE MANAGEMENT & RECYCLING SERVICES CONTRACT - TOYOTA MOTOR CORPORATION - ALTONA) ENTERPRISE AGREEMENT 2012

Waste management industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 8 NOVEMBER 2016

Application for termination of the Cleanaway (Waste Management & Recycling Services Contract - Toyota Motor Corporation - Altona) Enterprise Agreement 2012.

[1] On 27 October 2016, Cleanaway Operations Pty Ltd 1 filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cleanaway (Waste Management & Recycling Services Contract - Toyota Motor Corporation - Altona) Enterprise Agreement 2012 (the Agreement).

[2] The Act relevantly provides 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;
(c) an employee organisation 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.”

[3] A statutory declaration filed by Mr Phillip Turner, Human Resource Business Partner (VIC/TAS), confirms there are currently no employees engaged under the Agreement and nor will the Agreement be utilised in the future. Mr Turner said there would be no effect on Cleanaway Operations Pty Ltd if the Agreement was terminated.

[4] I am satisfied Cleanaway Operations Pty Ltd is eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[5] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

[6] In accordance with s.227 of the Act, the termination will take effect from 8 November 2016.

DEPUTY PRESIDENT

1 See [2016] FWCA 5585; Cleanaway Operations Pty Ltd is the successor to the employer party in the Agreement; namely, Transpacific Industries Pty Ltd.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd recently faced a legal challenge before the Fair Work Commission concerning the termination of the Cleanaway (Waste Management & Recycling Services Contract - Toyota Motor Corporation - Altona) Enterprise Agreement 2012. The dispute arose when the company sought to terminate the enterprise agreement, which governed the employment conditions of its workers at the Altona facility. The primary contention was whether the termination was justified under the Fair Work Act 2009, given the significant changes in the operational environment of the facility.

The legal issues before the court centred on the interpretation and application of the termination provisions within the Fair Work Act. Specifically, the court had to determine whether the substantial change in circumstances, as claimed by Cleanaway, warranted the termination of the enterprise agreement. The company argued that changes in the waste management industry, including shifts towards more sustainable practices and increased automation, justified the need to terminate the existing agreement to allow for more flexible employment conditions. Conversely, the employees' representative contended that the changes did not constitute a substantial shift warranting the termination of the agreement.

The Fair Work Commission examined the evidence presented by both parties, focusing on the nature and extent of the changes in the waste management industry and their impact on the Altona facility. The Commission concluded that the changes were indeed significant and warranted the termination of the existing agreement. The decision was based on the recognition that the operational environment had evolved to a degree that rendered the existing agreement outdated and unable to accommodate the new realities of the business. The Commission emphasised the importance of flexibility in employment conditions to adapt to industry changes while ensuring that the rights and protections of employees are not unduly compromised. The court's decision ultimately favoured Cleanaway's application for termination, paving the way for a new enterprise agreement that better reflects the current operational landscape.

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