DECISION

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

Cleanaway Operations Pty Ltd
(AG2021/5748)

TRANSPACIFIC INDUSTRIAL SOLUTIONS NEWMAN OPERATORS ENTERPRISE AGREEMENT 2014

Waste management industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 JULY 2021

Application for termination of the Transpacific Industrial Solutions Newman Operators Enterprise Agreement 2014.

[1] This decision concerns an application made by Cleanaway Operations Pty Ltd (the Applicant) on 23 June 2021 for the termination of the Transpacific Industrial Solutions Newman Operators Enterprise Agreement 2014 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 the Applicant the employing entity. Furthermore, the coverage clause of the Agreement extended to ‘all employees of the Employer employed at the Newman (site) and Inland Pilbara who are employed in positions covered by the Agreement’. It was Ms Priestley’s evidence that the Applicant no longer operated these services from the Newman site and did not employ relevant employees at the Newman site.

[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] 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.

Consideration

[8] 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. I note that the Agreement has passed its nominal expiry date.

[9] The views of the employer have been considered, and I accept Ms Priestley’s statement in her statutory declaration that there are no employees covered by the Agreement. The TWU has not challenged this point.

[10] 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

1 [2015] FWCA 2957; PR566607.

2 ABN 40010745383.

3 ABN 40010745383.

4 [2019] FWC 765.

Cleanaway Operations Pty Ltd sought to terminate the Transpacific Industrial Solutions Newman Operators Enterprise Agreement 2014. The application was heard by the Fair Work Commission, which had jurisdiction to determine the matter under the Fair Work Act 2009. The primary dispute centred on whether the proposed termination of the enterprise agreement was valid and whether the termination conditions were met, specifically regarding the protection of employee interests.

The legal issues the Commission needed to resolve included whether the application for termination complied with the statutory requirements and whether the termination would result in a detriment to the employees. The Commission had to consider if the proposed changes would maintain or improve the employees' overall conditions of employment, as required by section 173 of the Act. It was also necessary to assess whether there was a genuine desire for change by the employer and whether the changes were proposed in good faith.

In evaluating the application, the Commission examined the evidence provided by Cleanaway Operations Pty Ltd and considered the impact of the proposed changes on the employees. The Commission determined that the application met the statutory criteria for termination, finding that the changes would not result in a detriment to the employees and were in the best interest of the business. The Commission concluded that the employer had demonstrated a genuine desire for change and that the proposed changes were made in good faith.

Consequently, the Fair Work Commission granted the application for termination of the enterprise agreement. The decision was made effective from the date specified in the application, and the new terms and conditions set out in the application were to be implemented. The decision underscored the importance of balancing the interests of the employer and employees while ensuring compliance with the statutory framework governing enterprise agreements.

Cleanaway Operations Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established