Veolia Environmental Services (Australia) Pty Ltd
[2022] FWCA 404
•21 FEBRUARY 2022
| [2022] FWCA 404 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Veolia Environmental Services (Australia) Pty Ltd
(AG2022/208)
Veolia Environmental Services Viva Energy Refinery Coatings Greenfields Agreement 2018-2020
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 21 FEBRUARY 2022 |
Application for termination of the Veolia Environmental Services Viva Energy Refinery Coatings Greenfields Agreement 2018 - 2020
Veolia Environmental Services (Australia) Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Veolia Environmental Services Viva Energy Refinery Coatings Greenfields Agreement 2018 - 2020[1] (the Coatings Agreement).
The Applicant is covered by the Coatings Agreement and is entitled to make an application under s.225. The Australian Workers’ Union (AWU) is covered by the Coatings Agreement and was copied into the application filed by the Applicant.
Section 225 of the Act provides as follows:
“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.”
Section 226 of the Act provides as follows:
“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.”
Section 226 requires consideration of the views of employees and employee organisations covered by the Coatings Agreement. The Form F24C Declaration, dated 31 January 2022 and filed on behalf of the Applicant, states there are no longer any employees covered by the Coatings Agreement.
On 4 February 2022, the Commission sought the views of the AWU in relation to the application and supporting material. In correspondence to my chambers on 14 February 2022, the AWU advised that it had sought confirmation from its delegates that no one was employed under the Coatings Agreement and that the AWU’s position was that it neither supported nor objected to the application.
The Form F24C Declaration provides further facts concerning the operation of the Coatings Agreement, which I accept and in part summarise below.
The Coatings Agreement is expressed to apply to employees working in classifications concerning ‘industrial coatings’ work at the Viva Energy Geelong Refinery, located in Refinery Road, Corio. The Coatings Agreement operated alongside a pre-existing agreement at the same Corio site, namely the Veolia Environmental Services Viva Energy Refinery AWU Agreement 2017 – 2020[2] (the Refinery Agreement). The Refinery Agreement operated from 18 May 2017 and had a nominal expiry date of 31 March 2020. The AWU was a party to, and covered by, the Refinery Agreement.
The Refinery Agreement applied to (in summary) ‘general services and industrial services’ at the site but, as the F24C Declaration states, not ‘industrial coatings’. The provision of coatings services became necessary due to a broadening in the scope of work provided by the Applicant to Viva Energy at the site. For that reason, the Coatings Agreement was established. The Coatings Agreement commenced on 3 October 2018 and, as with the Refinery Agreement, had a nominal expiry date of 31 March 2020. As noted, the AWU was covered by that agreement. The application refers to the Refinery Agreement being renegotiated in 2020 to include industrial coatings work.
On 17 April 2020, the Veolia Environmental Services (Australia) Pty Ltd Viva Energy Refinery AWU Agreement 2020 – 2023[3] was approved by the Commission. It commenced operation from 24 April 2020 and has a nominal expiry date of 31 March 2023. I note that agreement applies to ‘coatings work’ (among others) at the same site.
Based on the material before me, including that contained in the employer declaration filed with the application, I am satisfied that termination of the Coatings Agreement is not contrary to the public interest.
Taking into account all of the circumstances, including those in s.226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Coatings Agreement, noting:
(a)there are no employees covered by the agreement;
(b)the views of the Applicant and the AWU;
(c)the circumstances of the Applicant and AWU, including the likely effect that the termination of the agreement will have on them.
Having regard to the above findings, I must terminate the Coatings Agreement. The termination will operate from 21 February 2022.
DEPUTY PRESIDENT
[1] AE500253
[2] AE424309
[3] AE507777
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