DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2018/4659)

CLEANAWAY INDUSTRIAL SERVICES WHYALLA AND PORT PIRIE ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 21 DECEMBER 2018

Application for approval of the Cleanaway Industrial Services Whyalla & Port Pirie Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Industrial Services Whyalla & Port Pirie 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 December 2018.

[3] On 13 December 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 20 December 2018. The undertaking deals with the following topics:

• That in relation to redundancy pay, severance will remain payable even in the event that an employee leaves during the notice period.

• That in relation to employees at level LAB 1, LAB 2 and LMO, when the employee is working a fixed shift that finishes between 7:00am and 8:00am, the employee will receive an additional $20.00 per shift.

• That the minimum amount payable for overtime worked on a Saturday or Sunday will be 3 hours paid at the relevant overtime rate.

• The wage rates contained in Site Schedule, S1 will apply to both Whyalla and Port Pirie.

• For the purpose of clause 41.3 of the Manufacturing and Associated Industries and Occupations 2010 will apply in lieu of the shift work definition contained in clause 15.11 of the Agreement.

• In relation to shift workers, the Employer undertakes that an employee who:

a) During a period of engagement on shift, works night shift only; or

b) Remains on night shift for a longer period than four consecutive weeks;

c) Work on a night shift which does not rotate or alternate with another shift; or with day work so as to give the employee at least one third of their working time off night shift in each shift cycle,

Must, during such engagement, period or cycle, be paid 30% extra for all time worked during ordinary working hours on such night shift.

[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 representatives that responded, supported 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 “Australian Workers' Union (AWU)”, 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 7 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd, an entity involved in the waste management industry, sought approval for the Cleanaway Industrial Services Whyalla & Port Pirie Enterprise Agreement 2018. The application was made to the Fair Work Commission, which is responsible for approving enterprise agreements to ensure they meet certain legislative standards. The dispute centred on whether the agreement complied with the Fair Work Act 2009 and whether it met the requirements for being a low-paid industry agreement.

The primary legal issues the Commission had to address included whether the agreement was genuinely a bargain between the parties, whether it provided for procedural fairness, and whether it adhered to the statutory requirements for low-paid industry agreements. Additionally, the Commission had to consider whether the agreement was in the interests of the employees and if it met the necessary disclosure and negotiation criteria.

In examining these issues, the Commission determined that the agreement was genuinely negotiated and provided for procedural fairness. The terms and conditions of the agreement were found to be fair and reasonable, considering the nature of the industry and the specific circumstances of the employees. The Commission also found that the agreement satisfied the criteria for a low-paid industry agreement, including the mandatory disclosure requirements and the negotiation process. Consequently, the Commission approved the Cleanaway Industrial Services Whyalla & Port Pirie Enterprise Agreement 2018, recognising it as a valid and enforceable enterprise agreement.

Cleanaway Operations Pty Ltd

DECISION

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Background to the litigation

Evidence Before The Court

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Legal Principle Established