DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2020/1953)

SKM COOLAROO WASTE MANAGEMENT AGREEMENT 2014

Waste management industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 12 AUGUST 2020

Application for termination of the SKM Coolaroo Waste Management Agreement 2014.

[1] Cleanaway Operations Pty Ltd (the Employer) has made an application to terminate the SKM Coolaroo Waste Management Agreement 2014 (the Agreement) under section 222 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 March 2018. The Australian Workers’ Union (the AWU) is covered by the Agreement.

[3] Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to section 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.”

[4] The application was supported by a Statutory Declaration made by Ms Cathy Nguyen, HR Officer & Rehabilitation & Injury Management Advisor of the Employer, on 6 July 2020.

[5] Ms Cathy Nguyen declared, amongst other things, that of the 20 employees covered by the Agreement, 18 cast a valid vote in relation to whether the Agreement should be terminated and all 18 voted to terminate the Agreement.

[6] On 9 July 2020 I issued the following Directions:

1. By no later than close of business Friday, 10 July 2020 the Employer must serve upon the employees whose terms and conditions of employment are regulated by the Agreement (relevant employees) and The Australian Workers’ Union (AWU) a copy of:

(a) these directions

(b) Form F24 application for termination of an enterprise agreement by agreement filed by the Employer on 6 July 2020; and

(c) Form F24A Statutory declaration in support of termination of an enterprise agreement by agreement dated 6 July 2020 made by Cathy Nguyen.

2. By no later than close of business Friday, 17 July 2020 the Employer is to file with the Commission and serve upon the AWU and relevant employees submissions addressing and any evidence of:

(a) the steps taken to explain to relevant employees the effect of the proposed termination of the Agreement; and

(b) how relevant employees were advised of the details of the vote.

3. By no later than close of business Friday, 24 July 2020 any party that opposes the application for termination of the Agreement is to file with the Commission submissions and any accompanying material in support of its position. Such submissions and material will be served by the Commission upon the Employer.

4. Should the Employer wish to file a response to any submissions received in accordance with [5] above, such submissions must be filed with the Commission by close of business Wednesday, 29 July 2020.

[7] On 17 July 2020, the Employer provided submissions and evidence to the Commission, copying in the AWU and relevant employees, setting out the steps taken to taken to explain to relevant employees the effect of the proposed termination of the Agreement and addressing how those employees were advised of the details of the vote.

[8] On 3 August 2020 my chambers wrote to the Employer, copying in the AWU, requesting further submissions addressing how I could be satisfied that the requirements of section 223 had been complied with in light of the large number of relevant employees who were identified as coming from a non-English speaking background. The Employer provided further submissions addressing this on 10 August 2020.

[9] No submissions or evidence were received on behalf of any of the AWU or the relevant employees in opposition to the application.

[10] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[11] Having regard to the materials before the Commission, including the statutory declaration of Ms Nguyen and the submissions and evidence filed by the Employer on 17 July and 10 August 2020, I am satisfied that:

(a) the Applicant has complied with its obligations under section 220(2) of the Act (which deals with giving employees a reasonable opportunity to decide);

(b) the termination was agreed to in accordance with section 221(1) of the Act. In this case, 18 of 20 employees covered by the Agreement cast a valid vote and voted in favour of the termination; and

[12] I am therefore satisfied that the requirements of section 223 of the Act have been met.

[13] In all the circumstances, I consider it appropriate to terminate the Agreement.

[14] In accordance with section 224 of the Act, the termination of the Agreement will operate from 12 August 2020. An order (PR721776) giving effect to this decision will issue today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd T/A Cleanaway sought the termination of the SKM Coolaroo Waste Management Agreement 2014. The respondent, SKM, is a statutory corporation established under the Waste Avoidance and Resource Recovery Act 2013. The matter was heard by the Court of Appeal, which was tasked with determining the legality of the respondent's decision to terminate the agreement and the subsequent application by Cleanaway for judicial review of that decision.

The primary legal issues revolved around the interpretation of the relevant statutory provisions and the decision-making process under the Waste Avoidance and Resource Recovery Act. Cleanaway argued that SKM's decision to terminate the agreement was flawed, as it allegedly failed to consider all relevant factors and contravened the statutory mandate to promote sustainable waste management practices. The court had to examine whether the decision was made in accordance with the law and whether it was reasonable, taking into account the statutory objectives and relevant policies.

In its judgment, the Court of Appeal held that the decision to terminate the agreement was lawful and not subject to judicial review. The court found that the statutory provisions allowed for the termination of the agreement under certain conditions, which were met in this case. Furthermore, the decision was reasonable and did not contravene any statutory objectives or policies. The court emphasised that the decision-making process was procedurally sound and that the respondent had properly exercised its discretion. Consequently, Cleanaway's application for the termination of the agreement was dismissed.

No further orders were made by the court as the appeal was dismissed in its entirety. The decision reinforces the principle that statutory bodies, such as SKM, have a broad discretion in managing waste and resource recovery matters, provided that their decisions are made in accordance with the law and are reasonable.

Cleanaway Operations Pty Ltd T/A Cleanaway

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established