Veolia Environmental Services Pty Ltd T/A Veolia Environmental Services Pty Ltd

[2019] FWCA 4093

[2019] FWCA 4093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Veolia Environmental Services Pty Ltd T/A Veolia Environmental Services Pty Ltd
(AG2019/1822)

VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD TOYOTA AWU ENTERPRISE AGREEMENT 2014-2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 17 JUNE 2019

Application for termination of the Veolia Environmental Services (Australia) Pty Ltd Toyota AWU Enterprise Agreement 2014-2018.

[1] An application has been made by Veolia Environmental Services Pty Ltd T/A Veolia Environmental Services Pty Ltd (the Applicant) to terminate the Veolia Environmental Services (Australia) Pty Ltd Toyota AWU Enterprise Agreement 2014-2018 (the Agreement) under section 225 of the Fair Work Act 2009 (the Act).

[2] The Agreement has a nominal expiry date of 31 March 2018.

[3] The matter for determination is whether or not to grant the application to terminate the Agreement.

Background to the application

[4] This application was lodged with the Fair Work Commission (the Commission) on 30 May 2019. The employer’s statutory declaration filed with the application contained information relevant to the views of the employer, the effect of the termination of the employer and employees and matters relevant to the public interest consideration.

[5] The Australian Workers’ Union (the AWU) is covered by the Agreement. On 4 June 2019, my chambers wrote to the AWU asking if they object or consent to the application. On 11 June 2019, the AWU advised my chambers that the organisation has no objection to the Agreement being terminated.

The law to be applied

[6] Section 225 of the Act provides:

“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.

[7] Section 226 of the Act provides:

“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.”

[8] The application to terminate the Agreement was made by the employer who is covered by the Agreement, consistent with s. 225 (a) of the Act.

[9] A statutory declaration was made by Mr Richard Hesketh (Industrial Relations Business Partner), which accompanied the application. Relevantly, Mr Hesketh stated in answer to Q2.1 of the statutory declaration that the Agreement was created for the specific purpose of providing waste management services to Toyota, at its Altona North manufacturing site. Toyota has since ceased operations at this site and all impacted employees were either successfully redeployed or terminated via retrenchment.

[10] In considering whether it is appropriate to terminate the Agreement, I have considered the views of the AWU, an employee organisation covered by the Agreement. The AWU do not oppose the termination of of the Agreement on the basis that this Agreement has coverage over a workplace that no longer exists and that no employees are employed under this Agreement. As there are no employees covered by the Agreement, it is apparent that the termination will have no effect on employees pursuant to s. 226 (b)(ii) of the Act.

[11] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that in accordance with s.226(a) of the Act, it is not contrary to the public interest to terminate the Agreement.

[12] Pursuant to s.225 of the Act, I have considered, and am satisfied as to each of the matters contained in s.226 of the Act.

[13] I am satisfied that it is appropriate to approve the termination of the Agreement. Accordingly, the Agreement is terminated.

[14] The termination will come into effect from 17 June 2019.

COMMISSIONER

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