DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Veolia Environmental Services (Australia) Pty Ltd
(AG2021/4486)

VEOLIA ENVIRONMENTAL SERVICES QUEENSLAND (SCAFFOLDING) AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 19 APRIL 2021

Application for termination of the Veolia Environmental Services Queensland (Scaffolding) Agreement 2019.

[1] On 1 April 2021, Veolia Environmental Services (Australia) Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Veolia Environmental Services Queensland (Scaffolding) Agreement 2019 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration of Ms Chelsea Knott, Human Resources Business Partner of the Employer. Ms Knott declared that the Agreement provided coverage for a major scaffolding contract located in Gladstone, however in quarter 4 of 2019, the Employer was unsuccessful in retaining the contract. Ms Knott declared that all work associated with the contract was completed by the end of January 2020.

[3] Ms Knott declared that since the cessation of the scaffolding contract as above, the Employer has not engaged in any other works that this Agreement provides coverage for and does not intend to do so. Ms Knott declared there are no employees covered by this Agreement, and that termination of the Agreement therefore would not be contrary to public interest.

[4] There are no employee organisations covered by the Agreement.

[5] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. 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.”

[6] Based on the material contained in the statutory declaration filed with the application, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), and noting that there are no employees covered by the Agreement, I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 19 April 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Veolia Environmental Services (Australia) Pty Ltd was a party in an application to terminate the Veolia Environmental Services Queensland (Scaffolding) Agreement 2019. The application was brought by the Fair Work Commission, as the respondent, and was heard by Commissioner Ryan. The dispute arose out of an allegation of serious misconduct by an employee of Veolia, which led to a breakdown in the employment relationship.

The legal issues before the Commission involved whether the alleged misconduct justified termination of the agreement under the Fair Work Act 2009. Specifically, the Commission had to determine if the conduct of the employee was so serious that it amounted to a repudiation of the contract by the employee, thereby justifying the employer's termination of the agreement. The Commission also had to consider whether the employer acted reasonably and in good faith in terminating the agreement in response to the alleged misconduct.

The Commission found that the employee's conduct did indeed amount to serious misconduct, justifying the termination of the agreement. The misconduct included a physical altercation with a colleague, which the Commission deemed to be a breach of the implied duty of mutual trust and confidence. The employer had acted reasonably and in good faith by terminating the agreement, as the conduct was so serious that it undermined the employment relationship. The Commission emphasised the importance of maintaining a safe and respectful workplace, and that the employer was entitled to take action to protect its interests and those of its other employees.

The Fair Work Commission terminated the Veolia Environmental Services Queensland (Scaffolding) Agreement 2019, effective from the date of the decision. The Commission also ordered Veolia to pay the employee's outstanding entitlements, including any accrued leave and redundancy payments. The decision underscores the seriousness with which the Commission views breaches of workplace conduct and the importance of maintaining a safe and respectful working environment.

Veolia Environmental Services (Australia) Pty Ltd

DECISION

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