Tox Free Australia Pty Ltd T/A Tox Free

[2019] FWC 3630

[2019] FWC 3630

FAIR WORK COMMISSION

DECISION

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

Tox Free Australia Pty Ltd T/A Tox Free
(AG2019/1095)

TOXFREE AUSTRALIA - RIO TINTO WASTE MANAGEMENT CONTRACT ENTERPRISE AGREEMENT 2015-2018

Waste management industry
DEPUTY PRESIDENT BINET	PERTH, 29 MAY 2019

Application for termination of the Toxfree Australia - Rio Tinto Waste Management Contract Enterprise Agreement 2015-2018.

[1] Tox Free Australia Pty Ltd T/A Tox Free (Tox Free)has made an application (Application) to the Fair Work Commission (FWC) to terminate the Toxfree Australia - Rio Tinto Waste Management Contract Enterprise Agreement 2015-2018 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 7 October 2018.

[3] The parties to the Agreement are Tox Free and the employees employed by Tox Free in a classification covered by the Agreement to service the Rio Tinto waste management contract in the Pilbara region excluding Karratha, Cape Lambert, Pannawonica, Mesa A and Mesa J (Employees).

[4] Section 225 of the FW 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;

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

[5] Section 226 of the FW Act states:

“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.”

[6] In support of the Application, Tox Free filed a statutory declaration by Mr John Saliba (Saliba Declaration). The Saliba Declaration states that the contract for the performance of the work which is the subject of the Agreement has expired and has not been renewed by Rio Tinto. According to the Saliba Declaration all employees previously covered by the Agreement have been deployed elsewhere or made redundant.

[7] On 7 May 2019, Directions were issued with respect to the Application. The Australian Workers’ Union (AWU) was directed to file an outline of submissions in response to the Application and any evidence on which they sought to rely by 4pm on Tuesday 14 May 2019.

[8] No response was received from the AWU by 4pm on Tuesday 14 May 2019. An email was issued to AWU following up on the Directions and provided the AWU until 4pm on Tuesday 23 May 2019 to file their submissions.

[9] In its response to the Directions AWU stated that AWU does not object to the Application as it understands that there are no employees currently covered by the Agreement and that the Agreement is effectively defunct.

Consideration

[10] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[11] Based on the material contained in the Saliba Declaration filed with the Application, there is nothing before me that raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] No opposition to the Application was received for, or on behalf, of any employees or the organisation entitled to represent them. In the circumstances I am satisfied that it is appropriate to terminate the Agreement.

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

[14] The termination will come into effect from 29 May 2019.

DEPUTY PRESIDENT

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