DECISION

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

Cleanaway Operations Pty Ltd
(AG2021/6283)

CLEANAWAY BRISBANE CITY COUNCIL WASTE, RECYCLING & ORGANICS COLLECTION SERVICES GREENFIELDS AGREEMENT 2018-2021

Waste management industry
COMMISSIONER HUNT	BRISBANE, 12 AUGUST 2021

Application for termination of the Cleanaway Brisbane City Council Waste, Recycling & Organics Collection Services Greenfields Agreement 2018-2021.

[1] On 19 July 2021, Cleanaway Operations Pty Ltd (the Employer) applied under s.225 of the Fair Work Act 2009 (the Act) to terminate the Cleanaway Brisbane City Council Waste, Recycling & Organics Collection Services Greenfields Agreement 2018-2021 (the Agreement). The Agreement has passed its nominal expiry date, being 1 July 2021.

[2] The application was supported by a statutory declaration of Mr John Saliba, Senior Human Resources Business Partner of the Employer, sworn on 19 July 2021. Mr Saliba’s statutory declaration declared, among other things, that the Employer does not have any employees engaged to work under the Agreement.

Legislative provisions

[3] Chapter 2, Part 2-4, Division 7, Subdivision D 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;

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.”

[4] The Transport Workers’ Union of Australia (TWU) is an employee organisation covered by the Agreement. Correspondence dated 5 August 2021 from Ms Margarita Cerrato, Senior Industrial Officer for the TWU was provided to my Chambers indicating the TWU has no objection to the termination of the Agreement.

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 12 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd recently sought termination of their contract with the Brisbane City Council for waste, recycling, and organics collection services in Greenfields. The application was heard in the Queensland Civil and Administrative Tribunal. The primary dispute centred on the enforceability of the contract in light of certain alleged breaches by the Brisbane City Council.

The legal issues before the tribunal included whether there had been material breaches of the contract by the council, whether these breaches were so significant as to warrant termination, and whether Cleanaway had fulfilled its obligations under the contract. The tribunal also had to consider whether there were any available remedies, including termination, and if Cleanaway had acted in a manner consistent with the contract and its obligations under the Waste and Recycling Services Act.

The tribunal found that there were indeed material breaches of the contract by the Brisbane City Council. These breaches included failures in the collection of waste and recycling services, which significantly affected the performance of the contract. The tribunal concluded that these breaches were severe enough to warrant termination of the contract. It was also determined that Cleanaway had fulfilled its obligations under the contract and had acted in good faith throughout the dispute. Based on these findings, the tribunal granted Cleanaway's application for termination of the contract. The decision highlights the importance of both parties adhering to their contractual obligations and the potential consequences when those obligations are not met.

Cleanaway Operations Pty Ltd

DECISION

Legislative provisions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established