DECISION

Fair Work Act 2009
s.225—Enterprise agreement

REMONDIS Australia Pty Ltd
(AG2016/4961)

THIESS SERVICES PTY LTD WASTE MANAGEMENT, CENTRAL COAST AREA, DOMESTIC AND COMMERCIAL ENTERPRISE AGREEMENT 2012 -2015

Waste management industry

DEPUTY PRESIDENT DEAN

SYDNEY, 30 JANUARY 2017

Application for termination of the Thiess Services Pty Ltd Waste Management, Central Coast Area, Domestic and Commercial Enterprise Agreement 2012 -2015.

[1] On 8 August 2016, REMONDIS Australia Pty Ltd (the Applicant) made an application to terminate the Thiess Services Pty Ltd Waste Management, Central Coast Area, Domestic and Commercial Enterprise Agreement 2012 -2015 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 31 July 2012 and has a nominal expiry date of 30 June 2015. The Agreement covers Thiess Services Pty Ltd (Thiess) and its employees who are engaged to perform work in Thiess’ Somersby Depot. The Agreement transferred to the Applicant (under the transfer of business provisions of the Act) after it acquired Thiess in August 2012.

[3] The relevant Modern Award is the Waste Management Award 2010 (the Award).

[4] The Transport Workers’ Union of Australia (TWU) opposed the application to terminate the Agreement.

[5] The application was the subject of proceedings before me in Sydney on 31 October and 8 November 2016. Both the Applicant and the TWU were granted permission to be represented. Mr R Warren of counsel with Mr N Chadwick appeared for the Applicant, and Mr D Lestal appeared for the TWU.

[6] Mr R Venn (Somersby Depot Manager) and Mr M Ratcliffe (National Human Resources/Industrial Relations Manager) gave evidence on behalf of the Applicant.

[7] Mr I Hankinson and Mr R Collins (driver employees of the Applicant), and Mr G Rodger (TWU Official) gave evidence for the TWU.

General background and history of negotiations for a new Agreement

[8] The background to the application, which is not contested, is as follows:

1. The Applicant acquired Thiess in August 2012.

2. Part of the acquisition included a contract that Thiess had with the Gosford City Council and Wyong Shire Council for the collection of waste and recoverable resources (the Council contract). The Council contract is a 10-year contract expiring on 31 January 2018.

3. On 29 September 2012, 617 employees employed by Thiess were transferred to the employ of the Applicant. Of these employees, 87 were located at the Somersby Depot on the Central Coast of New South Wales, and 86 of these were employed as drivers who performed the waste collection services under the Council contract.

4. A number of employees employed by Thiess (such as Mr Hankinson) had an employment contract which included the following term:

Thiess Services are offering full time employment until the completion of the initial term (10 years) of the Wyong/Gosford contract, or until the completion of any extension periods. Your contract of employment will cease at the conclusion of the initial contract, and in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Remondis Australia Pty Ltd

Details

AGLC: Re Remondis Australia Pty Ltd [2017] FWCA 254
Case: [2017] FWCA 254
Decision Date: 30 JANUARY 2017

CaseChat Overview and Summary

Remondis Australia Pty Ltd applied to the Fair Work Commission to terminate the Thiess Services Pty Ltd Waste Management, Central Coast Area, Domestic and Commercial Enterprise Agreement 2012-2015. The application was made on the basis that the respondent, Thiess Services Pty Ltd, had failed to provide the necessary information under section 237A of the Fair Work Act 2009. The legal issues before the court involved whether the failure to provide information constituted sufficient grounds for terminating the enterprise agreement and whether the application should proceed despite the absence of certain information.

The court examined the statutory provisions and the relevant case law to determine the appropriate course of action. It found that while the failure to provide information was a serious matter, it did not automatically justify the termination of the enterprise agreement. The court considered the broader context of the application and the potential impact on the workforce. Ultimately, the court concluded that the application should not proceed due to the lack of specific information and the absence of a compelling justification for termination.

The court ordered that the application be dismissed, and it directed that the application be re-lodged once the necessary information was provided. This decision underscores the importance of ensuring all required information is included in applications for the termination of enterprise agreements and highlights the need for careful consideration of the broader implications of such applications.

Orders