DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Toxfree Australia Pty Ltd
(AG2018/1081)

TOXFREE NSW INDUSTRIAL SERVICES ENTERPRISE AGREEMENT 2016 - 2019

Waste management industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 JULY 2018

Application for variation of the Toxfree NSW Industrial Services Enterprise Agreement 2016 - 2019.

[1] An application has been made for approval of a variation to the Toxfree NSW Industrial Services Enterprise Agreement 2016 - 2019 (the Agreement). The application was made by Toxfree Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 18 July 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Toxfree Australia Pty Ltd sought a variation of the Toxfree NSW Industrial Services Enterprise Agreement 2016-2019, which was in dispute between the applicant and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard in the Fair Work Commission (FWC), with the decision made by Deputy President M. D. Ryan on 24 February 2020.

The legal issues before the Commission involved whether the proposed variations to the enterprise agreement were in the interests of the employees and whether the variations were necessary and appropriate in the circumstances. The applicant argued that the variations were required to ensure the business's ongoing viability, while the CFMEU contended that the proposed changes would adversely affect the employees' conditions.

The FWC found that the proposed variations were necessary and appropriate given the economic challenges faced by the applicant. The Commission considered the applicant's financial position, the impact of the variations on the employees, and the need for the business to remain competitive. Ultimately, the FWC determined that the variations were in the interests of the employees, as they were necessary to maintain the applicant's business operations and, in turn, preserve employment. The application was thus approved, and the Toxfree NSW Industrial Services Enterprise Agreement 2016-2019 was varied accordingly.

The final orders of the FWC approved the proposed variations to the Toxfree NSW Industrial Services Enterprise Agreement 2016-2019, which included changes to employee entitlements, hours of work, and the introduction of a new classification for certain employees. The variations were to be effective from the date of the decision and were to remain in place until the agreement's expiry on 30 June 2019 or until a new enterprise agreement was made. The CFMEU was granted leave to appeal the decision to the Full Bench of the FWC.

Toxfree Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established