DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Cleanaway Operations Pty Ltd
(AG2016/5549)

CLEANAWAY (C&I) WOLLONGONG ENTERPRISE AGREEMENT 2016

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 SEPTEMBER 2016

Application for approval of the Cleanaway (C&I) Wollongong Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cleanaway Operations Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cleanaway (C&I) Wollongong Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with an employee bargaining representative, Mr P Simpson. The Agreement is to cover employees who perform work in the Commercial Division of the applicant located in Wollongong and who are engaged in roles under the classifications outlined in the Agreement (currently 14). For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 21 March 2016, and voting for the Agreement’s approval took place on 25 August 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 11 of the employees who cast a valid vote, supported the approval of the agreement. The application for approval of the Agreement was lodged on 7 September 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Mr D Lemme, Senior Human Resource Business Partner of the applicant, identified the Waste Management Award 2010 [MA000043] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Lemme said that the Agreement provides for terms which are greater than, or more beneficial than the reference instrument including, higher rates of pay, enhanced redundancy entitlements and higher allowances. Mr Lemme said that the Agreement does provide for some terms which are less beneficial including some lower allowances and overtime entitlements for part time employees. Wages are to be increased by 3.75% on the approval of the Agreement, which will be paid retrospectively from 15 May 2016. Wages are to be further increased by 2.5% on 15 May 2017 and 2.5% on 15 May 2018. In those circumstances, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 14 and 12 respectively, and a dispute resolution procedure at clause 11 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 14 September 2016, Mr D Lemme appeared on behalf of the applicant with Mr P Simpson, employee bargaining representative. Mr Lemme submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission.

[5] Having heard the applicant’s submissions and upon reviewing theterms of the pre-approval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the Cleanaway (C&I) Wollongong Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 21 September 2016 and have a nominal expiry date of 15 May 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by Cleanaway Operations Pty Ltd, seeking approval of the Cleanaway (C&I) Wollongong Enterprise Agreement 2016. The agreement in question is a proposed enterprise agreement between Cleanaway and its employees, which seeks to establish terms and conditions of employment for the workers. The Commission was tasked with determining whether the agreement complied with the statutory requirements set out in the Fair Work Act 2009 and whether it had been fairly negotiated and applied.

The central legal issues before the Commission included whether the agreement contained all the mandatory terms prescribed by the Act, whether it was made in accordance with the genuine agreement-making process, and whether it was compliant with the 'better off overall test'. The applicant argued that the proposed agreement met all these criteria, while no objections were raised by any party or individual affected by the agreement.

In determining these issues, the Commission considered the evidence presented regarding the negotiation process and the content of the agreement. It was found that all mandatory terms were included in the agreement, and that the process of negotiation was genuine and free from any unfair practices. Additionally, the Commission concluded that the agreement would result in employees being better off overall when compared to the applicable awards or other agreements. Thus, the Commission was satisfied that the proposed agreement complied with the statutory requirements and was fairly negotiated.

Accordingly, the Fair Work Commission approved the Cleanaway (C&I) Wollongong Enterprise Agreement 2016. The agreement now forms the basis for the terms and conditions of employment for the employees covered by it.

Cleanaway Operations Pty Ltd

DECISION

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Legal Principle Established