Cleanaway Operations Pty Ltd

[2019] FWCA 8516

[2019] FWCA 8516

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
(AG2019/4606)

CLEANAWAY LIQUIDS TOWNSVILLE PLANT & VEHICLE WORKSHOPS ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 18 DECEMBER 2019

Application for termination of the Cleanaway Liquids Townsville Plant & Vehicle Workshops Enterprise Agreement 2016.

[1] On 29 November 2019, Cleanaway Operations Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Cleanaway Liquids Townsville Plant & Vehicle Workshops Enterprise Agreement 2016 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Katie Foster, Senior HR Business Partner of the Employer which declared, amongst other things, that there are two employees who are covered by the Agreement and stated that following the termination of the Agreement those employees’ terms and conditions of employment would be governed by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). Ms Foster declared that terminating the Agreement would provide covered employees with some more beneficial terms and conditions within the Award, and the Employer would continue to apply more beneficial terms under the Agreement than the Award, including an ‘on-call’ allowance, greater redundancy entitlements, higher afternoon and night shift allowances and a laundry allowance.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is an employee organisation covered by the Agreement.

[4] On 5 December 2019, my Associate wrote to the parties noting that two employees remained employed under the Agreement. I directed the Employer to provide copies of the application in this matter and Ms Foster’s statutory declaration to the covered employees and I sought the views of those employees and the AMWU regarding the termination of the Agreement. The Employer later confirmed that a copy of the application and Ms Foster’s statutory declaration was provided to employees on 9 December 2019.

[5] The AMWU wrote to my chambers and stated that it had discussed the termination of the Agreement with one of the employees, who is a member of the AMWU. The AMWU stated that it was satisfied that its member employee would not be disadvantaged by the termination of the Agreement and the AMWU did not oppose the termination of the Agreement.

[6] I did not receive any correspondence setting out the views of the second employee that is not a member of the AMWU regarding the termination of the Agreement.

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

Consideration

[8] 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.

[9] As stated in the statutory declaration filed with the application, there are two employees covered by the Agreement, as well as the AMWU. The AMWU and the employee that is a member of the AMWU do not oppose the termination of the Agreement. I did not receive any correspondence providing the views of the second covered employee on the termination of the Agreement.

[10] In consideration of the material before me relevant to s.226(b)(i) and (ii) and having considered Ms Foster’s statutory declaration and the views provided by the AMWU, I consider that it is appropriate to terminate the Agreement.

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

[12] The termination will take effect from today, 18 December 2019.

COMMISSIONER

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