Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services

[2018] FWCA 7127

[2018] FWCA 7127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(AG2018/6069)

VEOLIA ENVIRONMENTAL SERVICES (WA) OFFSHORE INDUSTRIAL SERVICES & MAINTENANCE ENTERPRISE AGREEMENT 2014-2018

Manufacturing and associated industries
DEPUTY PRESIDENT BINET	PERTH, 23 NOVEMBER 2018

Application for termination of the Veolia Environmental Services (WA) Offshore Industrial Services & Maintenance Enterprise Agreement 2014-2018.

[1] Veolia Environmental Services (Australia) Pty Ltd (Veolia) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Veolia Environmental Services (WA) Offshore Industrial Services & Maintenance Enterprise Agreement 2014–2018 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 22 October 2018.

[3] The parties to the Agreement are Veolia and its employees employed as Operators, Tradespersons Leading Hands or Supervisors performing industrial services, maintenance and modification and upgrade works at offshore sites and facilities off the coast of Western Australia and the Northern Territory (Employees).

[4] The Australian Workers’ Union (AWU) is covered by the Agreement.

[5] Section 225 of the FW Act states:

“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.”

[6] Section 226 of the FW Act states:

“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.”

[7] In support of the Application, Veolia filed a Statutory Declaration (Crouch Declaration) by Mr John Crouch (Crouch), which states that Veolia is no longer contracted to provide services to which the scope of the Agreement is applicable. The Crouch Declaration further states that another contractor has been engaged to perform the relevant work and there are no Employees covered by the Agreement.

[8] On 7 November 2018, directions were issued with respect to the Application. The AWU were directed to file an outline of submissions in response to the Application and any evidence on which the AWU sought to rely by 15 November 2018.

[9] In its response to the directions, the AWU stated they do no object to the Application, the termination would have no effect on the AWU and terminating the Agreement is not contrary to the public interest.

Consideration

[10] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[11] The AWU do not object to the application to terminate the Agreement and submit it is not contrary to the public interest to terminate the Agreement.

[13] Based on the material contained in the Crouch Declaration filed with the Application, and the subsequent materials filed in accordance with the directions issued on 7 November 2018, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[14] No opposition to the Application was received for, or on behalf, of any employees or the organisation entitled to represent them.

[15] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[16] The termination will come into effect from 23 November 2018.

DEPUTY PRESIDENT

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