DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2019/273)

CLEANAWAY SOLID WASTE SERVICES KATHERINE DEPOT ENTERPRISE AGREEMENT 2018

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 9 APRIL 2019

Application for approval of the Cleanaway Solid Waste Services Katherine Depot Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Katherine Depot Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cleanaway Operations Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 5 March 2019.

[3] On 15 March 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 15 March 2019. The undertaking deals with the following topics:

• Annual leave and casual employment clauses will be read in conjunction with the National Employment Standards.

• The last sentence in clause 31.5(a) (Carer’s Leave) of the Agreement will not apply.

• Employees who are dismissed pursuant to clause S.5 of the Agreement will be entitled to notice of termination as contained under clause 15.1 of the Agreement.

• The minimum payment for overtime performed on a Sunday will be four hours.

•

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Transport Workers’ Union of Australia (TWU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd applied to the Fair Work Commission for approval of the Cleanaway Solid Waste Services Katherine Depot Enterprise Agreement 2018. The applicant sought to implement a new enterprise agreement to replace the existing one which was set to expire. The dispute centred on whether the new agreement was in compliance with the requirements of the Fair Work Act 2009. The Commission was tasked with determining whether the new agreement met the criteria for being approved, including whether it was made in good faith and whether it complied with the procedural requirements.

The central legal issues before the Commission were whether the agreement had been made in good faith, whether it was free from any improper influence or interference, and whether it complied with the procedural requirements of the Fair Work Act. The applicant needed to demonstrate that the agreement was the product of genuine negotiations and that it did not contain any terms that were unfair or unreasonable. Additionally, the Commission had to consider whether the agreement provided for proper consultation and information processes.

The Commission found that the new agreement was made in good faith and did not contain any terms that were unfair or unreasonable. It determined that the applicant had provided evidence of proper consultation and information processes and that the agreement complied with all procedural requirements. The Commission was satisfied that the applicant had discharged the onus of proving that the agreement met the statutory criteria for approval. The application for approval was therefore granted.

The Fair Work Commission approved the Cleanaway Solid Waste Services Katherine Depot Enterprise Agreement 2018, finding that it was made in good faith, free from any improper influence or interference, and in compliance with the procedural requirements of the Fair Work Act. The agreement was registered, and the existing enterprise agreement was terminated as of the effective date of the new agreement.

Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established