Tox Free Australia Pty Ltd T/A Tox Free

[2020] FWCA 375

[2020] FWCA 375

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
(AG2020/149)

TOXFREE AUSTRALIA PTY LTD - YARWUN ALUMINA REFINERY INDUSTRIAL SERVICES ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 23 JANUARY 2020

Application for termination of the ToxFree Australia Pty Ltd - Yarwun Alumina Refinery Industrial Services Enterprise Agreement 2015.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Tox Free Australia Pty Ltd T/A Tox Free (the Applicant) to terminate the ToxFree Australia Pty Ltd - Yarwun Alumina Refinery Industrial Services Enterprise Agreement 2015 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 19 December 2019.

[3] Further, ss.225 and 226 of the FW Act relevantly provide:

“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.

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.”

[4] Mr Richard Pruckner, Senior Human Resources Business Partner for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Pruckner confirmed in his statutory declaration that:

•  The Agreement’s nominal expiry date had passed;

•  The Applicant had acquired ToxFree Australia Pty Ltd in May 2018;

•  The Applicant has approximately 125 Enterprise Agreements, and has undertaken the process of terminating the Agreements that no longer apply to anyone;

•  No employees are employed under the Agreement, as such there would be no public interest relevant which would warrant the continuation of the Agreement; and

•  All employees that were previously covered by this agreement are now covered by the Cleanaway Industrial Services Gladstone Aluminium Operators Enterprise Agreement 2018.

[5] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 30 January 2020.

[6] I Order accordingly.

COMMISSIONER

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