Cleanaway Operations Pty Ltd

[2018] FWC 6194

[2018] FWC 6194

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

(AG2018/3704)

Transpacific Industrial Solutions Campbellfield Enterprise Agreement 2015

Manufacturing and associated industries
Commissioner Cirkovic	MELBOURNE, 4 OCTOBER 2018

Application for termination of the Transpacific Industrial Solutions Campbellfield Enterprise Agreement 2015.

1. On 10 August 2018, Cleanaway Operations Pty Ltd (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Transpacific Industrial Solutions Campbellfield Enterprise Agreement 2015 (the Agreement).

1. The Agreement came into operation on 8 June 2015 with a nominal expiry date of 30 June 2017.

1. The Applicant filed a statutory declaration of Ms Danielle Kavanagh, declared 9 August 2018 (Statutory Declaration).

1. I issued directions on 5 September 2018. The Applicant has complied with these directions.

Legislation

1. Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 is 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.”

1. Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

1. As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

1. In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that:

·  there are currently no employees covered by the Agreement;

1. In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

1. The Australian Workers Union (AWU) is an organisation which is covered by the Agreement. Upon making directions on 5 September 2018, I provided any employee organisation covered by the Agreement to make submissions by 21 September 2018 if they opposed the application. The AWU did not file any submissions opposing the application.

1. The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that “it would be an administrative process to tidy-up enterprise agreements that no longer apply to anyone.”

1. I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

1. For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

1. An Order[1] will be issued terminating the Agreement with effect from 4 October 2018.

COMMISSIONER

<AE414170  PR701072 >

[1] PR700834.

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