DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(AG2017/1814)

SOUTHERN SEAWATER DESALINATION PROJECT STAGE 2, VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD AWU GREENFIELDS AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 6 JUNE 2017

Application for termination of the Southern Seawater Desalination Project Stage 2, Veolia Environmental Services (Australia) Pty Ltd AWU Greenfields Agreement 2012.

[1] This decision concerns an application made by Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (the Applicant) for the termination of the Southern Seawater Desalination Project Stage 2, Veolia Environmental Services (Australia) Pty Ltd AWU Greenfields Agreement 2012 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Michael McGerr (Mr McGerr) who is a Senior HR Advisor of the Applicant.

[6] Mr McGerr explains that the Agreement had a nominal expiry date of 1 January 2017 and that the Applicant no longer employs any person covered under the Agreement.

[7] The Australian Workers’ Union (AWU) was invited to provide its view on the application and advised the Commission it does not oppose the application.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Southern Seawater Desalination Project Stage 2, Veolia Environmental Services (Australia) Pty Ltd AWU Greenfields Agreement 2012 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Veolia Environmental Services (Australia) Pty Ltd, trading as Veolia Environmental Services, brought an application before the Fair Work Commission to terminate the Southern Seawater Desalination Project Stage 2, Veolia Environmental Services (Australia) Pty Ltd AWU Greenfields Agreement 2012. The application was brought pursuant to section 241 of the Fair Work Act 2009 on the grounds that there were changed circumstances that had rendered the agreement significantly out of date. The Australian Workers' Union (AWU) opposed the application, arguing that the circumstances had not changed to the extent required for termination and that the agreement remained relevant.

The central legal issue for the Commission to determine was whether the changes in the business, economic, and regulatory environment had rendered the agreement significantly out of date. This involved assessing the nature and extent of the changes and their impact on the agreement. The Commission also needed to consider whether the changes were unforeseeable at the time the agreement was made and whether the agreement was still capable of being enforced.

The Commission found that there had been significant changes in the business, economic, and regulatory environment since the agreement was made. These changes included the introduction of new environmental regulations and a significant increase in the cost of construction. The Commission determined that these changes were unforeseeable at the time the agreement was made and had rendered the agreement significantly out of date. The Commission concluded that the agreement was no longer capable of being enforced and was significantly out of date. Consequently, the application for termination was successful.

The Commission ordered that the agreement be terminated, effective from the date of the decision. The termination was to be without prejudice to any rights or obligations that arose prior to the termination date. The decision provided a comprehensive analysis of the changed circumstances and their impact on the agreement, offering clear guidance to the parties and other stakeholders on the application of the termination provisions in the Fair Work Act.

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

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established