Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

[2021] FWCA 6567

[2021] FWCA 6567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd
(AG2021/7420)

STERIHEALTH VICTORIAN ENTERPRISE AGREEMENT 2015

Waste management industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 5 NOVEMBER 2021

Application for termination of the SteriHealth Victorian Enterprise Agreement 2015 – application granted.

[1] Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd (Cleanaway) has applied, pursuant to section 225 of the Fair Work Act 2009 (the Act), to terminate the SteriHealth Victorian Enterprise Agreement 2015 1 (the Agreement).

[2] The Agreement covers SteriHealth Pty Ltd (SteriHealth) and all its employees employed in its Victorian premises in the classifications contained in the Agreement.

[3] The Agreement covered SteriHealth as the relevant employer at the time the Agreement was approved on 8 April 2016. The parent company of Cleanaway acquired the parent company of Sterihealth in May 2018. One consequence of this purchase was that there was a transfer of business and a transfer of employment from SteriHealth to Cleanaway (Transfer of Business). Employees formerly employed by SteriHealth immediately became employees of Cleanaway upon the Transfer of Business, and Cleanaway and its employees became covered by the Agreement. 2 The Agreement has been replaced by the Cleanaway Daniels Victorian & Tasmanian Enterprise Agreement 20203(Cleanaway Agreement).

[4] Subdivision D of Division 7 of Part 2-4 of the Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[5] Section 225 of the Act provides:

“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;

(c) an employee organisation covered by the agreement.”

[6] Section 226 of the Act provides:

“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.”

Directions

[7] On 25 September 2021 I issued directions requiring Cleanaway to file material in support of its application to terminate the Agreement including a statutory declaration setting out the details of the Transfer of Business, the engagement of transferring employees, the application of the Cleanaway Agreement to employees and any other relevant matters. Cleanaway filed a statutory declaration and supporting documentation on 7 October 2021.

[8] The directions required SteriHealth and any employee covered by the Agreement to file written material in response to the application regarding their views, their circumstances and the likely effect that termination of the Agreement will have on them by close of business 21 October 2021. No written material was filed by SteriHealth or any employee.

Consideration

[9] The Agreement has passed its nominal expiry date of 30 June 2019. It no longer covers any employees because it has been replaced by the Cleanaway Agreement. I am satisfied that the Cleanaway Agreement covers relevant employees, was made after the Agreement, and has not reached its nominal expiry date.

[10] The materials filed by Cleanaway satisfies me that termination of the Agreement will not be contrary to the public interest. The Agreement has passed its nominal expiry date. There will be no adverse effect on employees if the application is granted because the Agreement no longer has any operative effect. Termination of the Agreement will be of administrative convenience to Cleanaway because it will reduce the number of enterprise agreements covering the company that no longer cover any employees.

[11] In the circumstances, it is appropriate to terminate the Agreement. The termination will operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE418482  PR735518>

 1   AE418482

 2   See Cleanaway Operations Pty Ltd T/A Cleanaway [2019] FWC 5043 (19 July 2019) and Order PR710509 (Commissioner Gregory)

 3   AE512791