Cleanaway Operations Pty Ltd

[2025] FWCA 1932

[2025] FWCA 1932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Cleanaway Operations Pty Ltd

(AG2025/1543)

CLEANAWAY LIQUID & TECHNICAL SERVICES KOORAGANG ISLAND DRIVERS & PLANT OPERATORS ENTERPRISE AGREEMENT 2024

Waste management industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 11 JUNE 2025

Application for variation of the Cleanaway Liquid & Technical Services Kooragang Island Drivers & Plant Operators Enterprise Agreement 2024

1. In a Decision[1] issued on 4 October 2024, the Commission approved the Cleanaway Liquid & Technical Services Kooragang Island Drivers & Plant Operators Enterprise Agreement 2024 (the Agreement). The Agreement operates from 11 October 2024 and has a nominal expiry date of 31 August 2028. The Agreement covers the Australian Workers Union (AWU) being a bargaining representative for the Agreement.

1. Cleanaway Operations Pty Ltd (the Employer) has made an application pursuant to s.218A of the Act to correct a number of referencing and typographical errors in the Agreement and to insert agreed clauses which were inadvertently omitted from the Agreement.

1. The referencing errors in the Agreement which the Employer seeks to correct are:

   a.   In clause 14.3.5 the reference to ‘clause 21’ be amended to ‘clause 24’

   b.   In clause 19.2.1 the reference to ‘clause 24.2’ be amended to ‘clause 23.2.3’

   c.   In clause 26.3.2 the reference to ‘clause 28.3.1’ be amended to ‘clause 26.3.1’

   d.   In clause 26.4.1 the reference to:

   i.‘clause 30.3’ be amended to ‘26.3.1’

   ii.‘clause 28 – Overtime’ be amended to ‘Clause 24 – Overtime’

   iii.‘clause 30.1(g)’ be amended to ‘clause 26.1.6’

   e.   In clause 33.6.1 the reference to ‘clause 31.4 (a) & (b)’ be amended to ‘clause 33.2’

2. The Employer submits that the references in the Agreement refer to the relevant clauses in the previous agreement, Cleanaway Liquid & Technical Services Kooragang Island Drivers & Plant Operators Enterprise Agreement 2021, which were not updated during drafting and that the errors were not identified until after the Agreement had been approved. The Employer also submits that these referencing errors create an irregularity or defect within the Agreement and should be corrected to ensure that misinterpretation and/or disputation do not occur in the future.

1. The typographical error which the Employer seeks to correct is:

a.   In clause 40.2, the reference to ‘40.140.1’ be amended to ‘40.1’.

1. The Employer seeks to insert the following additional clauses:

Clause 40 – Additional Paid Leave Day

40.         Additional Paid Leave Day

40.1 In Lieu of a Picnic Day all employees will be entitled to one additional paid leave day, to be taken at a time agreed between the employee and the Company.

40.2 The Company must not unreasonably refuse the request for an additional paid leave day.

40.3 The additional leave day cannot be taken as a substitute for personal leave or any other unplanned leave entitlement

40.4       The employee will be paid 7.6 hours at ordinary time rate of pay

40.5 If, due to operational requirements, the employee is required to work on the agreed day, the employee will be entitled to nominate another day as their additional paid leave day.

40.6 The entitlement shall not accrue from year to year and cannot be cashed out.

Clause 44.6

Cleanaway will provide laundry facilities at the workplace to enable uniforms tbe laundered on site by the employees. In the event that the laundry facilities are unavailable for more than five days, Cleanaway will make arrangements, at Cleanaway’s expense, for the laundering of said uniforms.

1. The Employer submits that these new clauses were agreed by the parties early in the negotiation process but were not included in the final draft of the Agreement and that the insertion of both of these terms will benefit the employees covered by Agreement. The Employer also submits that Clause 40 was negotiated to replace clause 36.7 of the previous agreement, which provided for an additional paid day in lieu of a picnic day each year and reflects the agreement reached during bargaining between the Employer and the AWU.

1. The AWU consents to the Agreement being amended in accordance with the Employer’s application. 

1. The AWU submits that in relation to clause 23.2.3 of the Agreement, the Employer and the AWU reached agreement during bargaining that an overtime meal allowance would become payable to an employee at 10 hours and not after 10 hours as the Agreement currently provides. The AWU therefore seeks that clause 23.2.3 be amended to provide:

An employee who is required to work 10 hours or more on any one shift shall either be supplied with a meal by the Company or paid a meal allowance.

1. The Employer consents to the amendment sought by the AWU.

Consideration

1. Section 218A of the Act provides:

Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)  The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2)  The FWC may vary an enterprise agreement under subsection (1):
          (a)  on its own initiative; or

(b)  on application by any of the following:

(i) one or more of the employers covered by the agreement;
  (ii) an employee covered by the agreement;

(iii)  an employee organisation covered by the agreement.

(3)  If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. Section 218A is akin to the slip rule found in s.602 which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made. The power in s.218A to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity is confined to the remediation of clearly apparent and unintentional mistakes in circumstances not susceptible to controversy.[2]

1. I am satisfied that the variations sought by the Employer and the AWU are in relation to obvious errors. A consequence of the insertion of a new clause 40 is that the clauses which follow must be renumbered and that the typographical error identified by the Employer in former clause 40 must be corrected to ’41.1’. The proposed variations do not disturb any of the findings of the Commission in relation to the approval of the Agreement and the employees will not be disadvantaged by the proposed variations. In the circumstances, it is appropriate to vary the Agreement pursuant to s.218A(2) in the terms sought by the Employer and the AWU and to reflect the consequential variations identified by the Commission.

1. The consolidated version of the Agreement, as varied, is attached to this decision. The variation operates from 11 October 2024.

DEPUTY PRESIDENT

[1] [2024] FWCA 3514

[2] Application by Aurizon Operations Ltd [2023] FWCFB 193, [76]

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