Cleanaway Operations Pty Ltd

[2025] FWCA 1962

The attached document replaces the document previously issued with the above code on 13 June 2025.

Inserting the Agreement title to the Decision’s Preamble.

Gopi Iyer
Associate to Deputy President Roberts

Dated 16 June 2025

[2025] FWCA 1962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cleanaway Operations Pty Ltd

(AG2025/1591)

CLEANAWAY INDUSTRIAL SERVICES WOLLONGONG ENTERPRISE AGREEMENT 2025

Waste management industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 13 JUNE 2025

Application for approval of the Cleanaway Industrial Services Wollongong Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the Cleanaway Industrial Services Wollongong Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cleanaway Operations Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I note that the Notice of Employee Representational Rights (NERR) was not provided to employees until 15 days after the notification time.¹ However, having regard to the submissions received I am satisfied that this is a minor procedural error for the purposes of s.188(5) of the Act and that employees were not likely to have been disadvantaged by the error. I therefore propose to disregard the error in accordance with s.188(5).

I am of the view that the Agreement does not contain a consultation term compliant with the requirements of the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

On the basis of the material filed in support of the application, I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met.

I note that Clause 5 of the Agreement provides that where there is an inconsistency between this agreement and the National Employment Standards (NES), and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. This resolves any issues in relation to the operation of clause 35.4 of the Agreement.

The Australian Workers’ Union (AWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the AWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 17 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd sought approval for the Cleanaway Industrial Services Wollongong Enterprise Agreement 2025 under section 185 of the Fair Work Act 2009. The application was made by Cleanaway Operations Pty Ltd, with the agreement being a single enterprise agreement. There was a minor procedural error in the notice of employee representational rights, but it was deemed inconsequential as per section 188(5) of the Act.

The court was required to decide whether the agreement met all relevant requirements under sections 186, 187, and 188 of the Act. Additionally, the court had to consider whether the agreement contained a consultation term compliant with the Act and if it incorporated the model consultation term as prescribed by the Fair Work (Model Terms) Determination 2025. The court also needed to examine whether the agreement covered the Australian Workers' Union (AWU) as required under section 201(2) of the Act.

The court found that the agreement met all the relevant requirements under sections 186, 187, and 188 of the Act. The consultation term was not compliant, but the court decided to disregard this error under section 188(5) of the Act, as it was a minor procedural error and employees were unlikely to have been disadvantaged. The court also noted that Clause 5 of the agreement ensured that the National Employment Standards (NES) applied where there was an inconsistency. The Australian Workers' Union (AWU) had also lodged a statutory declaration to have the agreement cover it, and the court approved the agreement accordingly.

The agreement was approved and will operate in accordance with section 54 of the Act, with a nominal expiry date of 17 February 2027.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established