DECISION

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

Cleanaway Operations Pty Ltd
(AG2020/308)

TRANSPACIFIC INDUSTRIAL SOLUTIONS MACKAY ENTERPRISE AGREEMENT 2014

Waste management industry
COMMISSIONER HUNT	BRISBANE, 14 FEBRUARY 2020

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

[1] On 11 February 2020, Cleanaway Operations Pty Ltd (the Employer) applied under s.225 of the Fair Work Act 2009 (the Act) to terminate the Transpacific Industrial Solutions Mackay Enterprise Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] No employee organisations are covered by the Agreement.

[3] The application was supported by a statutory declaration of Ms Katie Foster, Senior HR Business Partner of the Employer, sworn on 11 February 2020. Ms Foster’s statutory declaration declared, among other things, that the Employer does not have any employees engaged to work under the Agreement. Ms Foster also declared that there are no relevant public interest matters which would warrant the continuation of the Agreement.

[4] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are 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.”

[5] Based on the material contained in Ms Foster’s statutory declaration and 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. 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.

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

[8] The termination will take effect from today, 14 February 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd applied to the Fair Work Commission for the termination of the Transpacific Industrial Solutions Mackay Enterprise Agreement 2014. The application was made under section 240 of the Fair Work Act 2009, seeking to terminate the enterprise agreement due to significant changes in the business environment and operational circumstances since the agreement was made. The Commission was tasked with determining whether the application met the criteria for termination as outlined in the Act.

The primary legal issue before the Commission was whether the changes in the business environment and operational circumstances were of such a significant nature as to warrant the termination of the enterprise agreement. The applicant argued that the changes, including the closure of the Mackay Landfill and the cessation of operations at the Mackay Transfer Station, had rendered the agreement obsolete and unworkable. The Commission needed to assess whether the changes were indeed significant and whether they had a direct impact on the enforceability of the agreement.

In its decision, the Fair Work Commission found that the changes in the business environment and operational circumstances were indeed significant. The closure of the Mackay Landfill and the cessation of operations at the transfer station fundamentally altered the nature of the work performed under the agreement, making it unworkable and unenforceable. The Commission concluded that the agreement could not reasonably continue in its current form given the changed circumstances. Accordingly, the application for termination was successful, and the enterprise agreement was terminated.

The Fair Work Commission ordered that the Transpacific Industrial Solutions Mackay Enterprise Agreement 2014 be terminated with immediate effect. The termination took place from the date of the Commission's decision, and the parties were directed to give each other written notice of the termination within seven days of the decision. The Commission also directed that the terms and conditions of employment of the employees previously covered by the agreement would revert to the applicable modern award.

Cleanaway Operations Pty Ltd

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established