Cleanaway Operations Pty Ltd

[2021] FWCA 2553

[2021] FWCA 2553

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
(AG2021/4583)

TOXFREE AUSTRALIA LA TROBE VALLEY POWER STATIONS AGREEMENT 2016-2019

Waste management industry
COMMISSIONER MCKINNON	MELBOURNE, 6 MAY 2021

Termination of enterprise agreement after nominal expiry date – application granted.

[1] Cleanaway Operations Pty Ltd (Cleanaway) has applied to terminate the Toxfree Australia La Trobe Valley Power Stations Agreement 2016-2019 1 (the Agreement). The Agreement covers employees employed to provide Industrial Services in the Agreement classifications at the Hazelwood Power Station and Loy Yang Power Stations A and B.

[2] The Agreement covered Toxfree Australia Pty Ltd (Toxfree) as the relevant employer at the time the Agreement was approved on 22 November 2016. The parent company of Cleanaway acquired the parent company of Toxfree in May 2018. One consequence of this purchase was that there was a transfer of business and a transfer of employment from Toxfree to Cleanaway. Employees formerly employed by Toxfree immediately became employees of Cleanaway upon the transfer of business, and Cleanaway and its employees became covered by the Agreement. 2 The Agreement also covers the Construction, Forestry, Maritime, Mining and Energy Union.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act 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.”

[4] The Agreement expired on 1 October 2019. It no longer covers any employees because it has been replaced by the Cleanaway Industrial & Waste Services Latrobe Valley Power Stations Enterprise Agreement 2020 3. The new enterprise agreement covers relevant employees, was made after the Agreement, and has not reached its nominal expiry date.

[5] The Union does not oppose termination of the Agreement if the result is that no relevant employees will become agreement-free when the application is granted.

[6] The materials filed with the application satisfy me that this is so and that termination of the Agreement will not be contrary to the public interest. The Agreement has passed its nominal expiry date. There will be no adverse effect on employees if the application is granted because the Agreement no longer has any operative effect. Termination of the Agreement will be of administrative convenience to Cleanaway because it will reduce the number of enterprise agreements covering the company that cover no employees.

[7] In the circumstances, it is appropriate to terminate the Agreement. The Agreement is terminated with effect from today.

COMMISSIONER

 1   AE422269.

 2   See Cleanaway Operations Pty Ltd t/a Cleanaway [2019] FWC 4971 (19 July 2019) and Order PR710409 (Commissioner Gregory).

 3   AE509089.

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<AE422269  PR729437>