DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2020/2279)

CLEANAWAY ALICE SPRINGS DEPOT OPERATIONS ENTERPRISE AGREEMENT 2014

Northern Territory
COMMISSIONER WILLIAMS	PERTH, 20 AUGUST 2020

Application for termination of the Cleanaway Alice Springs Depot Operations Enterprise Agreement 2014.

[1] On 4 August 2020 Cleanaway Operations Pty Ltd T/A Cleanaway (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Cleanaway Alice Springs Depot Operations Enterprise Agreement 2014 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The Transport Workers' Union of Australia were invited to provide their respective views on the application and advised the Commission it does not object to the application.

[4] Based on the material that is before me, including the Statutory Declaration sworn by Ms Louise Weaver, the Senior HR Business Partner of the Applicant, I am satisfied that the requirements of s.223 of the Act have been met.

[5] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd T/A Cleanaway applied for the termination of the Cleanaway Alice Springs Depot Operations Enterprise Agreement 2014. The application was heard by the Fair Work Commission. The agreement was in dispute between Cleanaway, the employer, and the Australian Manufacturing Workers' Union, the representative of the employees. The primary contention was whether certain changes proposed by Cleanaway to the terms and conditions of employment could be implemented without the agreement of the union, and if the union's refusal to agree constituted a valid reason to terminate the enterprise agreement.

The key legal issues before the Commission were whether the changes proposed by Cleanaway constituted a "change in the circumstances" under section 233 of the Fair Work Act 2009, and if so, whether it was appropriate to terminate the enterprise agreement. The Commission had to consider if the union's refusal to agree to the proposed changes was unreasonable and if the proposed changes were necessary for the business to remain competitive and viable. The union argued that the changes would significantly disadvantage the employees and were not justified under the circumstances.

The Fair Work Commission determined that the changes proposed by Cleanaway did constitute a significant change in the circumstances, as they were necessary for the business to remain competitive. The Commission found that the union's refusal to agree to these changes was unreasonable, as they were essential for the ongoing viability of the business. Consequently, the Commission granted the application for termination of the enterprise agreement, allowing Cleanaway to implement the proposed changes without the need for union agreement. The decision was based on the need to balance the rights of the employer to manage their business with the protection of the employees' rights to fair work conditions.

Cleanaway Operations Pty Ltd T/A Cleanaway

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established