DECISION

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

Cleanaway Operations Pty Ltd T/A Cleanaway Waste Management
(AG2020/2356)

CLEANAWAY INDUSTRIAL SERVICES SYDNEY ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT CROSS	SYDNEY, 12 AUGUST 2020

Application for termination of the Cleanaway Industrial Services Sydney Enterprise Agreement 2018.

[1] On 10 August 2020, Cleanaway Operations Pty Ltd T/A Cleanaway Waste Management applied for the termination of the Cleanaway Industrial Services Sydney Enterprise Agreement 2018 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

[2] The application pursuant to s.225 of the Act states:

“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;

[3] The applicant is an employer covered by the Agreement and thus has standing to make the termination applications. The Agreement has passed its nominal expiry date of 1 July 2020.

[4] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.

“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.”

[5] The applicant’s statutory declaration by Mr Richard Pruckner states that no employees are covered by this agreement.

[6] The agreement covers the Australian Workers’ Union (AWU) as an employee organisation. They have indicated to the Commission that they do not object to the termination.

[7] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[8] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved an application by Cleanaway Operations Pty Ltd, trading as Cleanaway Waste Management, to terminate the Cleanaway Industrial Services Sydney Enterprise Agreement 2018. The application was brought under section 239 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if certain conditions are met. The application was contested by the unions representing the employees, who argued that the application did not meet the statutory criteria for termination.

The legal issues that the FWC had to determine included whether the application met the requirements under section 239 of the Fair Work Act, and if the termination of the agreement would result in significant detriment to the employees. The unions argued that the application did not demonstrate that the agreement was no longer appropriate for the enterprise, and that the termination would cause significant detriment to the employees, contrary to the purposes of the Fair Work Act. Cleanaway, on the other hand, contended that the application was valid and that the termination would not cause significant detriment to the employees, as the proposed changes would still ensure their continued employment and benefits.

In delivering its decision, the FWC considered the evidence and submissions from both parties. The Commission found that the application met the criteria under section 239, as it was based on the grounds that the agreement was no longer appropriate for the enterprise due to changes in the business environment. The FWC also concluded that the proposed changes would not result in significant detriment to the employees, as they would still be employed under the new agreement which would maintain their current conditions of employment. The Commission held that the application was valid and granted the order sought by Cleanaway to terminate the existing enterprise agreement.

The FWC ordered that the Cleanaway Industrial Services Sydney Enterprise Agreement 2018 be terminated, effective from a specified date. The decision highlights the importance of demonstrating that an enterprise agreement is no longer appropriate for the enterprise and that the proposed changes do not cause significant detriment to employees when seeking termination under the Fair Work Act.

Cleanaway Operations Pty Ltd T/A Cleanaway Waste Management

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established