Veolia Environmental Services (Australia) Pty Ltd

[2022] FWCA 2522

[2022] FWCA 2522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd

(AG2022/2092)

Veolia Environmental Services (Australia) Pty Ltd SA & NT Mechanics Enterprise Agreement 2019 - 2022

Waste management industry
COMMISSIONER HAMPTON	ADELAIDE, 27 JULY 2022

Application for termination of the Veolia Environmental Services (Australia) Pty Ltd SA & NT Mechanics Enterprise Agreement 2019-2022.

1. On 23 June 2022 Veolia Environmental Services (Australia) Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Veolia Environmental Services (Australia) Pty Ltd SA & NT Mechanics Enterprise Agreement 2019-2022 (the Agreement).

1. The matter was heard by the Commission at a telephone hearing convened on 27 July 2022. Mr Rogers, of Mills Oakley Lawyers, appeared with permission on behalf of the Employer with Ms Stevens, Human Resources Business Partner and Ms Patterson, National Human Resources Manager from the applicant.

1. The application is for the termination of an enterprise agreement, by joint agreement between the employer and the employees covered, during the nominal life of that instrument. This is provided by s.219(1) of the Act.

1. The Agreement was approved by the Commission on 12 June 2019 with a nominal expiry date of 12 June 2023. There are 2 employees presently covered by the Agreement. There is no employee organisation covered by the Agreement.

1. Section 219(2) of the Act provides that an (agreed) termination has no effect unless it is approved by the Commission.

1. Section 223 of the Act sets out the conditions which must be met for the termination of an enterprise agreement to be approved in the present circumstances:

“223 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.”

1. The Form F24 application and the Form F24A – declaration in support of the termination of an enterprise agreement provided by Mr Richard Hesketh, Head of Workplace Relations of the Employer, have been lodged in accordance with the requirements of s.222(1) and (2) of the Act.

1. The employer conducted a vote of the employees concerning the proposed termination on 10 June 2022. The application has been made within the time required by s.222(3) of the Act. The two employees agreed to the termination on that date.

1. Prior to the ballot, the Employer took the steps required by s.220 of the Act to enable the employees to respond to the request to approve the termination. This included providing information about the consequences of the proposed termination, conducting a series of meetings, and providing clarification about the concern raised by the employees regarding future wage rates.

1. Having regard to the material before me, I am satisfied that the Employer has complied with the requirements of ss.221 and 222 and that the termination is agreed in accordance with the Act. I also find that there are no reasonable grounds for believing that the employees, both of whom have supported the termination and this application, have not genuinely agreed to that course of action. In that regard, I also observe that the employees were advised of the application and the hearing and provided with an opportunity to independently raise any concerns with the Commission.

1. This leaves the question as to whether the Commission is satisfied that the termination is appropriate, taking into account the views of the relevant parties. The broader context for the proposed termination is that the Employer has recently acquired the recycling and recovery operations of the SUEZ Group in Australia. The combined organisation has then reviewed the variety of industrial instruments in place. The Agreement only applies to two employees and largely reflects the terms of the Vehicle Manufacturing, Repair, Services and Retail Award 2020 (the modern Award).

1. The Employer has provided revised contracts of employment to each of the employees that provide for wage levels in excess of those established by the Agreement.

1. I consider that it is appropriate to approve the termination of the Agreement given the support of all parties, the fact that with the termination the parties will become subject to the terms of the modern award, and the steps taken by the employer to ensure that the beneficial wage terms of Agreement are further improved.

1. Given the above findings, the Commission is obliged to terminate the Agreement under s.222 of the Act and I so determine.

1. In accordance with s.224 of the Act, the termination will come into effect at 11.59pm 7 August 2022.

1. I have requested that a copy of this Decision be provided to each of the employees presently covered by the Agreement.

COMMISSIONER

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