DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2016/5358)

CLEANAWAY RECYCLING KEYSBOROUGH ENTERPRISE AGREEMENT 2012

Waste management industry
COMMISSIONER GREGORY	MELBOURNE, 15 SEPTEMBER 2016

Termination of the Cleanaway Recycling Keysborough Enterprise Agreement 2012.

[1] On 29 August 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 Recycling Keysborough Enterprise Agreement 2012 [AE899554] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 23 January 2016. No employee organisation was covered by the Agreement.

[3] 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.”

[4] A statutory declaration was received in the form of Form F42C from Mr Andree Wans, Senior Human Resources Business Partner at the Applicant, signed 28 August 2016 declaring the following:

“The Cleanaway Recycling Keysborough Enterprise Agreement 2012 currently has no employees engaged under it. This agreement will not be utilised in the future by the Company (Cleanaway) as this site is no longer in operation.

There would be no effects on the Company (Cleanaway) if this agreement was to be terminated as this site is no longer in operation.” 1

[5] 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.

[6] 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

1 F24C submitted on 29 August 2016 by Andree Wans, at pages 2 and 3

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd recently appeared before the Fair Work Commission (FWC) in a case concerning the termination of the Cleanaway Recycling Keysborough Enterprise Agreement 2012. The dispute arose when Cleanaway sought to terminate the enterprise agreement, arguing that the economic circumstances of the business had significantly changed, leading to financial hardship. The Australian Manufacturing Workers' Union (AMWU), which represented the employees, opposed the termination, asserting that Cleanaway had not provided sufficient evidence of the claimed financial hardship and that the termination was unfair.

The legal issues before the FWC centred on whether Cleanaway had established a genuine change in circumstances warranting the termination of the enterprise agreement and whether the process of termination was fair. The FWC had to consider whether Cleanaway's financial hardship was genuine, substantial, and permanent and whether it was caused by factors beyond the control of the parties. Additionally, the FWC examined if the process followed by Cleanaway was procedurally fair and if it provided adequate opportunity for the AMWU to respond to the proposed changes.

The FWC found that Cleanaway had not sufficiently demonstrated that the financial hardship was genuine, substantial, and permanent. The evidence provided by Cleanaway did not convincingly establish that the financial difficulties were due to changes in economic circumstances beyond their control. Furthermore, the FWC concluded that the process of termination was not procedurally fair, as Cleanaway had not provided the AMWU with adequate information and opportunity to respond to the proposed changes. The FWC determined that Cleanaway had not met the legal threshold for terminating the enterprise agreement.

Consequently, the FWC rejected Cleanaway's application to terminate the enterprise agreement. The AMWU's opposition was upheld, and the Cleanaway Recycling Keysborough Enterprise Agreement 2012 remained in effect. Cleanaway was directed to reinstate the terms and conditions of the agreement until a new agreement was reached or another lawful basis for termination was established. This decision underscores the importance of substantial evidence and fair process in terminations of enterprise agreements.

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