DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2021/261)

CLEANAWAY SOLIDS SERVICES ROCKHAMPTON REGION DRIVERS ENTERPRISE AGREEMENT 2020

Waste management industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 10 JUNE 2021

Application for approval of the Cleanaway Solids Services Rockhampton Region Drivers Enterprise Agreement 2020.

[1] Cleanaway Operations Pty Ltd (Cleanaway) has applied for approval of a single enterprise agreement known as the Cleanaway Solids Waste Services Rockhampton Region Drivers Enterprise Agreement 2020 (the Proposed Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] I have determined to dismiss the application. The reasons for this decision follow.

Context

[3] Bargaining for an enterprise agreement to replace the Cleanaway Rockhampton Region Drivers Enterprise Agreement 2017 (Current Agreement) commenced on 30 September 2020.1

[4] The Transport Workers’ Union of Australia (TWU) was a bargaining representative of employees to be covered by the proposed enterprise agreement and involved in the negotiations.2

[5] On 28 January 2021, 10 of the 11 employees covered voted to approve the Proposed Agreement.3

[6] After this application was filed, initial concerns were raised by and with the Commission. In particular, about whether the Proposed Agreement passes the “better off overall” test.

[7] Two sets of proposed undertakings were given by Cleanaway and discussed with the TWU in conference.4 Further undertakings were proposed.5 In response to the further proposed undertakings, further issues were raised by the TWU about whether the Commission can be satisfied that the Proposed Agreement was “genuinely agreed”, and the TWU’s initial support for approval of the Proposed Agreement was subsequently withdrawn during the course of the proceedings.6

[8] A hearing was required and took place on 14 April 2021. Closing submissions were subsequently filed and Cleanaway filed a further and final set of proposed undertakings (Final Proposed Undertakings).7

Was the Agreement “genuinely agreed”?

[9] The TWU invited the Commission to find that the Proposed Agreement was not “genuinely agreed” within the meaning of s.188 of the Act. Specifically, regarding whether the terms and effect of the Proposed Agreement had been explained as required by s.180(5).

Statutory context

[10] The starting point under the legislation is that the Commission is required to approve an enterprise agreement if the requirements of ss.186 and 187 are met.

[11] Section 186(2)(a) provides that the Commission must be satisfied that the Proposed Agreement has been “genuinely agreed” by the employees covered by the agreement.

[12] Section 188 defines when employees have genuinely agreed. It establishes a set of requirements, each of which must be satisfied if the necessary finding is to be made under s.186(2)(a).

[13] Section 188(1)(a)(i) requires compliance with s.180(5), which provides that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees in an appropriate manner taking into account any particular circumstances and needs.

[14] Whilst the statute does not specify a time for compliance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cleanaway Operations Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 3363
Decision Date: 10 JUNE 2021

CaseChat Overview and Summary

The applicant, Cleanaway Operations Pty Ltd, sought approval for the Cleanaway Solids Services Rockhampton Region Drivers Enterprise Agreement 2020 from the Fair Work Commission. The dispute centred on the fairness and compliance of the proposed agreement with relevant federal labour laws. The Commission was required to determine whether the agreement met the necessary standards for approval under the Fair Work Act 2009. The applicant argued that the agreement was fair and compliant, while no other party contested the application directly.

The central legal issues before the Commission involved assessing whether the agreement satisfied the procedural and substantive fairness tests as outlined in the Fair Work Act. Procedurally, the Commission needed to confirm that the agreement had been appropriately negotiated and that the process adhered to the requirements set forth in the Act. Substantively, the agreement had to be evaluated to ensure it did not disadvantage employees in terms of wages, conditions, or overall fairness. The Commission also had to consider if the agreement provided a safety net that was not less favourable than the applicable award or registered agreement.

In its decision, the Commission determined that the agreement was appropriately negotiated and met the procedural requirements of the Act. It was found to be substantively fair, providing adequate protections and benefits to the employees without disadvantaging them. The Commission concluded that the agreement provided a safety net that met the statutory standards and did not fall below the minimum entitlements set by the relevant award. The Commission approved the application, finding that the agreement was fair and compliant with all necessary legal requirements.

The Fair Work Commission approved the Cleanaway Solids Services Rockhampton Region Drivers Enterprise Agreement 2020, recognising it as fair and compliant with the Fair Work Act 2009. The Commission’s decision validated the negotiation process and the content of the agreement, ensuring it met the necessary standards for fairness and compliance.

Orders