Cleanaway Operations Pty Ltd

[2022] FWCA 4452

[2022] FWCA 4452

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

(AG2022/5123)

Cleanaway Industrial and Waste Services - Portland Enterprise Agreement 2018

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 20 DECEMBER 2022

Application for termination of the Cleanaway Industrial and Waste Services - Portland Enterprise Agreement 2018

1. On 6 December 2022, Cleanaway Operations Pty Ltd (the Applicant) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cleanaway Industrial and Waste Services - Portland Enterprise Agreement 2018 (the Agreement).

1. The Agreement has a nominal expiry date of 31 October 2021. The Agreement has now passed its nominal expiry date.

1. Section 226 of the Act states:

“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.”

1. The Agreement does not currently cover any employees. The Australian Workers’ Union (the AWU) are parties to the Agreement. On 8 December 2022, correspondence was issued to all parties inviting the AWU to advise if they had any objection to the application for termination. The AWU provided a response on 12 December indicating it neither opposed nor supported the proposed termination.

1. I have considered the information provided in the application by the Applicant pursuant to section 225 of the Act. This includes the declaration made by Sean Edwards, Head of Employee Relations and Industrial Relations for the Applicant, dated 6 December 2022. Mr Edwards makes the following submissions in relation to the approval of termination:

“The Agreement has expired its nominal expiry date and will not be renegotiated in the foreseeable future.

The Agreement’s terms and conditions cannot be expected to continue unaltered in perpetuity after it has passed its expiry date. The FW Act contemplates the terms and conditions of the Agreement may be altered by making a new Agreement or by terminating the existing Agreement.

There are no employees covered by the Agreement due to the loss of contract.

Terminating the Agreement will not result in changes in existing employment levels or adversely affect future employment opportunities within the Portland region.”

1. I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer, the AWU, and the employees covered by the agreement (noting that there are none) and the effect that the termination will have upon each of them.

1. In accordance with section 224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

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