Cleanaway Operations Pty Ltd

[2021] FWCA 3853

[2021] FWCA 3853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2021/5699)

TRANSPACIFIC INDUSTRIAL SOLUTIONS PILBARA REGION ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 9 JULY 2021

Application for termination of the Transpacific Industrial Solutions Pilbara Region Enterprise Agreement 2013.

[1] This decision concerns an application made by Cleanaway Operations Pty Ltd (the Applicant) on 21 June 2021 for the termination of the Transpacific Industrial Solutions Pilbara Region Enterprise Agreement 2013 1(the Agreement) made under s 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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.

[4] In support of its application, the Applicant has provided a statutory declaration from Ms Diane Priestley (Ms Priestley). Ms Priestly is the Senior Human Resources Business Partner of the Applicant with respect to its Industrial Waste Services.

[5] Ms Priestley noted that the coverage clause of the Agreement covered Transpacific Industries Pty Ltd (Transpacific). 2 She explained that on 2 February 2016, Transpacific was reregistered as Cleanaway Operations Pty Ltd3 therefore making Cleanaway the employing entity.

[6] Insofar as the Applicant's Pilbara industrial waste services were concerned, Ms Priestly gave evidence that such services were limited to those provided from the Applicant's Karratha depot or those that were provided to Fortescue Metals Group Ltd worksites. Employees at the Karratha depot were covered by the Toxfree Karratha Enterprise Agreement 2016 (Toxfree Agreement). Ms Priestly said that on 7 February 2019, the Commission transferred the Toxfree Agreementto the Applicant. 4 Relevant employees and their bargaining representatives, were, said Ms Priestly, currently renegotiating the terms and conditions and obligations of the Toxfree Agreement.

[7] Ms Priestly further clarified that the Agreement did not cover any employees.

[8] The Transport Workers’ Union of Australia (TWU) was invited to provide its views on the application on 5 July 2021. The TWU did not oppose the application. Further, the Australian Workers’ Union (AWU) was similarly invited to provide its views on the application, and like the TWU, it did not oppose the application.

Consideration

[9] I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.

[10] The views of the employer have been taken into account and I accept Ms Priestley’s statement in her statutory declaration that there are no employees covered by the Agreement. Neither the TWU or AWU has not challenged this point.

[11] Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE403934  PR731294>

 1   [2013] FWCA 6818; PR 541602.

 2   ABN 40010745383.

 3   ABN 40010745383.

 4   [2019] FWC 765