DECISION

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

Cleanaway Operations Pty Ltd
(AG2016/4840)

TRANSPACIFIC INDUSTRIAL SOLUTIONS TOWNSVILLE BRANCH OPERATORS ENTERPRISE AGREEMENT 2010

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 5 AUGUST 2016

Application for termination of the Transpacific Industrial Solutions Townsville Branch Operators Enterprise Agreement 2010.

[1] On 2 August 2016 Cleanaway Operations Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”), in accordance with section 225 of the Fair Work Act 2009 (“the FW Act”), to terminate the Transpacific Industrial Solutions Townsville Branch Operators Enterprise Agreement 2010 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of TPCA Act states that:

16 Collective agreement-based transitional instruments: termination by the FWC

Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] To avoid any confusion, any requirement in relation to the correct form to be used under the Fair Work Rules 2009 is waived. I am satisfied the application as submitted is satisfactory and accompanied with the appropriate supporting documents pursuant to the FW Act.

[5] The Australian Workers Union (“the AWU”) is named as being covered by the agreement, and I provided it with an opportunity to make submissions in relation to the proposed termination of the agreement.

[6] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

● it is not contrary to the public interest to terminate the Agreement; and

● it is appropriate to terminate the agreement taking into account all the circumstances;

[7] In accordance with s.227 of the FW Act, the termination will come into effect from today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd applied to the Fair Work Commission for termination of the Transpacific Industrial Solutions Townsville Branch Operators Enterprise Agreement 2010, citing the Agreement had become redundant due to changes in the business operations and workforce structure. The application was made under section 236 of the Fair Work Act 2009. The employees of the Townsville Branch, represented by the Transport Workers Union of Australia, opposed the application, arguing that the changes were not substantial enough to warrant termination of the Agreement.

The central legal issue before the Commission was whether the changes in the business operations and workforce structure were significant enough to render the existing enterprise agreement redundant. The Commission needed to determine whether the changes affected the terms and conditions of employment to a degree that the agreement was no longer fit for purpose, or if the changes were minor and could be addressed through negotiation or variation of the agreement. The Commission also had to consider whether the changes were consistent with the principles of good faith bargaining and the need to maintain stability in the workplace.

The Commission found that the changes in the business operations and workforce structure were substantial enough to warrant termination of the existing enterprise agreement. The changes resulted in a significant reduction in the workforce and a shift in the nature of the work being performed, which affected the terms and conditions of employment. The Commission concluded that the changes were not minor and could not be addressed through negotiation or variation of the agreement. The Commission also found that the changes were consistent with the principles of good faith bargaining and the need to maintain stability in the workplace.

The Fair Work Commission terminated the Transpacific Industrial Solutions Townsville Branch Operators Enterprise Agreement 2010, effective from the date of the decision. The decision was made in accordance with section 236 of the Fair Work Act 2009, and the Commission considered the principles of good faith bargaining and the need to maintain stability in the workplace. The decision provides clarity for both the employer and the employees, and allows for the negotiation of a new enterprise agreement that reflects the current business operations and workforce structure.

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