DECISION

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

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2019/4139)

TOX FREE AUSTRALIA PTY LTD- LTD DARWIN - SITE ENTERPRISE AGREEMENT 2015 -2018

Waste management industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 2 DECEMBER 2019

Application for termination of the Tox Free Australia Pty Ltd - Darwin - Site Enterprise Agreement 2015 -2018

[1] On 30 October 2019, Cleanaway Operations Pty Ltd T/A Cleanaway (Cleanaway) made an application to terminate the Tox Free Australia Pty Ltd- Ltd Darwin - Site Enterprise Agreement 2015 -2018 (the Agreement) under section 225 of the Fair Work Act 2009 (the FW Act).

[2] I issued directions on 11 November 2019.

[3] This matter was the subject of a hearing on 2 December 2019 at which time I heard from Louise Weaver, Senior Human Resources Business Partner on behalf of Cleanaway.

[4] Notice of this hearing was provided to the TWU being a bargaining representative for the Agreement and covered by it. The TWU did not appear on the application.

[5] The applicant employer is entitled to apply for the termination of the Agreement pursuant to section 225 of the FW Act.

[6] The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 29 April 2015 1. It was approved to operate from 6 May 2015 with a nominal expiry date of 28 April 2018. It has now passed its nominal expiry date.

[7] I have considered the information provided in the application and by Ms Weaver pursuant to section 225 of the FW Act. This includes the Statutory Declaration by Ms Weaver dated 25 October 2019. I note that the Statutory Declaration says that there are now no employees covered by the Agreement.

[8] I am satisfied as to each of the matters contained in section 226 of the FW Act. It is not contrary to the public interest to terminate the Agreement. It is appropriate to terminate the Agreement. No adverse consequences arise from such a course. Accordingly, the Agreement is terminated.

[9] The termination will come into effect from 11.59pm on 2 December 2019. An Order to this effect will be issued.

DEPUTY PRESIDENT

1 [2015] FWCA 2942

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Cleanaway Operations Pty Ltd, trading as Cleanaway, to terminate the Tox Free Australia Pty Ltd - Darwin - Site Enterprise Agreement 2015-2018. The applicant sought to terminate the enterprise agreement on the basis that it was no longer appropriate for the business, citing changes in the operational environment and the need to modernise its business practices. The application was opposed by the union representing the employees, who argued that the termination was unjustified and would result in significant detriment to the employees.

The legal issues before the Commission included whether the applicant had established a valid reason for seeking to terminate the enterprise agreement, and whether the proposed alternative arrangements offered by Cleanaway were fair and reasonable. The Commission considered the provisions of the Fair Work Act 2009 and relevant case law in determining whether the applicant had met the threshold requirements for termination. The Commission also considered the potential impact of the proposed termination on the employees, including any detriment that may result from the loss of the existing agreement.

The Commission found that Cleanaway had established a valid reason for seeking to terminate the enterprise agreement, as the company had demonstrated that the existing agreement was no longer appropriate for its business. The Commission also found that the proposed alternative arrangements offered by Cleanaway were fair and reasonable, and would provide employees with protections that were at least as good as those provided by the existing agreement. The Commission noted that the proposed arrangements included a number of protections for employees, including a transition allowance, redundancy payments, and a commitment to consult with employees about any future changes to their conditions of employment.

The Fair Work Commission granted the application for termination of the enterprise agreement, with the termination to take effect on the date specified in the application. The Commission also made orders regarding the payment of transition allowances and other payments to affected employees, and the provision of information to employees about the termination and the proposed alternative arrangements. The Commission emphasised the importance of fair and reasonable consultation with employees in the termination process, and noted that the applicant had demonstrated a commitment to engaging with employees and providing them with information about the proposed changes.

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