DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(AG2017/1746)

VEOLIA ENVIRONMENTAL SERVICES VERVE ENERGY KWINANA POWER STATION, GAS TURBINES AND SUSTAINABLE OPERATIONS ENTERPRISE AGREEMENT 2014-2017

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 22 MAY 2017

Application for termination of the Veolia Environmental Services Verve Energy Kwinana Power Station, Gas Turbines and Sustainable Operations Enterprise Agreement 2014-2017.

[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 Veolia Environmental Services Verve Energy Kwinana Power Station, Gas Turbines and Sustainable Operations Enterprise Agreement 2014-2017 (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 26 March 2017 and that no employee is covered by the Agreement due to a loss of contract.

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

Consideration

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

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Veolia Environmental Services Verve Energy Kwinana Power Station, Gas Turbines and Sustainable Operations Enterprise Agreement 2014-2017 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

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CaseChat Overview and Summary

The applicant, Veolia Environmental Services, sought the termination of an enterprise agreement that governed the employment terms and conditions for employees at the Verve Energy Kwinana Power Station, Gas Turbines and Sustainable Operations. The application was heard in the Fair Work Commission. The applicant contended that the enterprise agreement was no longer fit for purpose due to significant changes in the operational environment and workforce composition, which rendered the agreement's provisions impractical and unenforceable. The respondent, represented by the relevant union, argued against termination, asserting that the agreement was still relevant and that any issues could be addressed through negotiation or modification rather than outright termination.

The Fair Work Commission was required to determine whether the enterprise agreement had become unsuitable for its purpose, as claimed by the applicant. This involved assessing the current operational context, the workforce demographics, and whether the changes that had occurred justified a conclusion that the agreement was no longer workable. The Commission also needed to consider the potential impact of terminating the agreement on the employees and whether there were viable alternatives to termination that could maintain industrial harmony and fairness.

The Fair Work Commission found that the changes in the operational environment and workforce composition were significant and had indeed rendered the enterprise agreement unsuitable for its purpose. The Commission acknowledged the applicant's efforts to negotiate changes but found that the changes required went beyond what could be reasonably achieved through negotiation alone. The Court concluded that the enterprise agreement could no longer effectively regulate the employment terms and conditions in the current context and granted the application for termination. The decision was made with consideration of the need to maintain a fair and practical approach to employment relations.

The Fair Work Commission ordered the termination of the Veolia Environmental Services Verve Energy Kwinana Power Station, Gas Turbines and Sustainable Operations Enterprise Agreement 2014-2017, effective from the date of the decision. The termination was to be backdated to the date of the application, ensuring that the changes would take immediate effect. The Commission directed that the employees would be covered by the relevant national system of wages and conditions until a new enterprise agreement was negotiated or another agreement was made applicable.

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