Toxfree Australia Pty Ltd

[2019] FWCA 4640

[2019] FWCA 4640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Toxfree Australia Pty Ltd
(AG2019/2192)

TOXFREE - QUEENSLAND ALUMINA LTD (QAL) INDUSTRIAL SERVICES ENTERPRISE AGREEMENT 2015-2016

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 9 JULY 2019

Application for termination of the Toxfree - Queensland Alumina Ltd (QAL) Industrial Services Enterprise Agreement 2015-2016

[1] On 25 June 2019 Toxfree Australia Pty Ltd (Toxfree) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Toxfree - Queensland Alumina Ltd (QAL) Industrial Services Enterprise Agreement 2015-2016 (the Agreement). The Australian Workers’ Union (AWU) is covered by the Agreement.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)  the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by a Form F24A statutory declaration made by Mr John Saliba, Human Resources Business Partner of Toxfree which declared, amongst other things, that the 49 employees covered by the Agreement were notified of the time and place of the vote and that of the 47 votes cast, 45 employees approved the termination of the Agreement.

[4] After this matter was allocated to me, I directed Toxfree to produce to my chambers and serve on the AWU a copy of a memorandum described in Mr Saliba’s statutory declaration provided to relevant employees regarding the proposed termination of the Agreement and their ongoing terms and conditions of employment following the termination of the Agreement. Further, I invited the AWU to provide its views on the proposed termination of the Agreement.

[5] On 5 July 2019 Toxfree filed to my chambers and served on the AWU a copy of the memorandum as directed. I note that the memorandum stated that the employees covered by the Agreement would be ‘moved off’ the Agreement following its termination and onto the Cleanaway Industrial Services Gladstone Aluminium Operators Enterprise Agreement 2018 (the Cleanaway Agreement). 1

[6] On 8 July 2019 the AWU wrote to my chambers and to Toxfree and indicated that it had no objection to raise in respect of the present application on the basis of Toxfree’s assurances that all employees currently covered by the Agreement would have the terms and conditions of their employment governed by the Cleanaway Agreement following termination of the Agreement.

[7] On 9 July 2019 I wrote to the parties and drew their attention to clause 3.2 of the Cleanaway Agreement which states:

“3.2 The Agreement shall apply in respect to the Gladstone Operators of the Employer at the Queensland Alumina Ltd, Rio Tinto Australia Yarwun and Boyne Smelters Ltd facilities located in Gladstone, Queensland and to all Employees employed by the Employer on work at these facilities in Gladstone as outlined in the wages clause of this Agreement.”

[8] I noted to the parties that the Cleanaway Agreement defines the word ‘Employer’ to mean ‘Cleanaway Operations Pty Ltd ABN 40 010 745 383’. I asked that the parties confirm that the employees covered by the Agreement are now employed by ‘Cleanaway Operations Pty Ltd ABN 40 010 745 383’. Mr Saliba responded to my chambers and confirmed that the employees covered by the Agreement are currently employed by ‘Cleanaway Operations Pty Ltd ABN 40 010 745 383’.

[9] I am satisfied that the employees covered by the Agreement will be covered by the Cleanaway Agreement following termination of the Agreement.

[10] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect today, 9 July 2019.

COMMISSIONER

 1   [2019] FWCA 1192; AE501956.

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