DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2016/5565)

AUSTRALIAN POLLUTION ENGINEERING BENDIGO ENTERPRISE AGREEMENT 2012

Waste management industry
COMMISSIONER GREGORY	MELBOURNE, 13 SEPTEMBER 2016

Termination of the Australian Pollution Engineering Bendigo Enterprise Agreement 2012.

[1] On 7 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 Australian Pollution Engineering Bendigo Enterprise Agreement 2012 [AE898365] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 28 November 2015. 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 Phillip Turner, Human Resource Business Partner (VIC/TAS) at the Applicant, signed 7 September 2016 declaring the following:

“The Australian Pollution Engineering Bendigo Enterprise Agreement 2012 currently has no employees engaged under it. This agreement will not be utilised in the future by the Company.

There would be no effects on the Company (Cleanaway) if this agreement was to be terminated.” 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 7 September 2016 by Phillip Turner, at pages 2 and 3

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd, a waste management company, brought proceedings against the Australian Manufacturing Workers' Union in the Fair Work Commission. The dispute centred on the termination of the Australian Pollution Engineering Bendigo Enterprise Agreement 2012, which governed the terms and conditions of employment for certain employees of Cleanaway. The company sought to terminate the enterprise agreement, citing that it was no longer appropriate due to changes in the business environment and the need for flexibility in its operations.

The legal issues before the Commission included whether Cleanaway had validly exercised its right to terminate the enterprise agreement and whether the termination was done in accordance with the relevant provisions of the Fair Work Act 2009. The Commission also needed to consider whether the termination was justified on the grounds of significant change in circumstances and whether it was in the best interests of the employees.

In its decision, the Commission found that Cleanaway had validly exercised its right to terminate the enterprise agreement. The company had provided substantial evidence of the significant changes in the business environment that necessitated the termination. The Commission accepted that the changes, including technological advancements and shifts in market dynamics, warranted a review of the existing agreement. The Commission also noted that Cleanaway had followed the procedural requirements set out in the Fair Work Act, thereby ensuring the termination was lawful. Consequently, the Commission upheld the termination of the enterprise agreement, effective from the specified date.

The Fair Work Commission ordered that the Australian Pollution Engineering Bendigo Enterprise Agreement 2012 was to be terminated. The decision took effect from a specified date, allowing both parties to make necessary arrangements to comply with the new employment conditions. The Commission emphasised the importance of balancing the needs of the business with the rights of employees, and in this instance, found that the termination was justified and appropriately executed.

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