Cleanaway Operations Pty Ltd

[2016] FWCA 5586

[2016] FWCA 5586

FAIR WORK COMMISSION

DECISION

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

Cleanaway Operations Pty Ltd
(AG2016/4883)

Manufacturing and associated industries
COMMISSIONER HAMPTON	ADELAIDE, 10 AUGUST 2016

Application for termination of the Transpacific Waste Management (South Australian Landfills - Maintenance) Enterprise Agreement 2010.

[1] This decision concerns an application by Cleanaway Operations Pty Ltd 1 pursuant to s 225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the Transpacific Waste Management (South Australian Landfills - Maintenance) Enterprise Agreement 2010.2The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 1 July 2014.

[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] This matter was the subject of a hearing on 10 August 2016 at which time I heard from Mr Brady, Senior HR Business Partner, on behalf of the applicant employer.

[4] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act.

[5] The application is being made in the context of organisational changes which have led to a circumstance whereby it is evident that the Agreement no longer applies to (or covers) any relevant parties and its termination will have no legal or practical consequences.

[6] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[7] The termination will take effect on and from 11.00 am on 10 August 2016.

COMMISSIONER

 1   Cleanaway Operations Pty Ltd is the successor to the employer party to the Agreement; namely, Transpacific Industries Pty Ltd.

 2   AE887193.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE887193  PR584012 >