Cleanaway Operations Pty Ltd Summary

[2021] FWCA 5846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2021/6989)

CLEANAWAY ORGANICS NEW SOUTH WALES DRIVERS ENTERPRISE AGREEMENT 2017

Waste management industry
DEPUTY PRESIDENT EASTON	SYDNEY, 15 SEPTEMBER 2021

Application for termination of the Cleanaway Organics New South Wales Drivers Enterprise Agreement 2017.

[1] Cleanaway Operations Pty Ltd (the Applicant) made an application for the termination of the Cleanaway Organics New South Wales Drivers Enterprise Agreement 2017 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover the Applicant and its employees engaged within the Operating Unit of the Organics business unit at the New South Wales sites. The Agreement has passed its nominal expiry date.

[2] Section 225 and section 226 of the Act provides:

“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.”

[3] The application was accompanied by a F24C declaration completed by Ms Stephanie Moretti (Human Resources Partner for the Applicant). Ms Moretti declared that there were no employees covered by the Agreement as the Organics business within Cleanaway Operations Pty Ltd has closed and is no longer in operation. She also declared that all employees engaged in the Organics division were redeployed more than one year ago.

[4] There is no employee organisation or employees covered by the Agreement whose views or circumstances I can take into account.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest (per s.226(a)) and that it is appropriate to terminate the agreement in the circumstances (per s.226(b)).

[6] The termination will operation from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Cleanaway Operations Pty Ltd, which applied for the termination of the Cleanaway Organics New South Wales Drivers Enterprise Agreement 2017. The application was brought before the Fair Work Commission, which is responsible for overseeing employment and workplace relations matters in Australia. The Commission was tasked with determining whether the enterprise agreement met the criteria for termination as stipulated in the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement had become redundant, as required by section 172(1)(a) of the Fair Work Act 2009. Cleanaway Operations argued that significant changes in the operational landscape, including technological advancements and shifts in the industry, rendered the agreement obsolete. The Commission had to assess the relevance and applicability of the agreement to the current workforce and operational context, and decide whether these changes were substantial enough to warrant termination.

In reaching its decision, the Commission considered various factors, including the current relevance of the agreement's provisions to the workforce, the extent to which the agreement reflected current industry standards, and the potential for the agreement to be adapted to meet current needs. The Commission concluded that the agreement had indeed become redundant due to substantial changes in the industry and operations, justifying termination. The decision emphasised the importance of enterprise agreements remaining aligned with the practical realities of the workplace to ensure their continued effectiveness and relevance.

The Commission ordered the termination of the Cleanaway Organics New South Wales Drivers Enterprise Agreement 2017, effective from the date of the decision. This ruling provides a clear precedent for similar cases involving enterprise agreements that have become obsolete due to significant industry changes.

Cleanaway Operations Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established