Cleanaway Operations Pty Ltd

[2016] FWCA 2160

[2016] FWCA 2160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Cleanaway Operations Pty Ltd
(AG2016/2565)

TRANSPACIFIC REFINERS RUTHERFORD ENTERPRISE AGREEMENT 2014

Waste management industry
DEPUTY PRESIDENT BULL	SYDNEY, 19 APRIL 2016

Application for variation of the Transpacific Refiners Rutherford Enterprise Agreement 2014

[1] An application has been made for approval of a variation of the Transpacific Refiners Rutherford Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Cleanway Operations Pty Ltd, (the employer/applicant) formerly Transpacific Industries Pty Ltd.

[2] The Agreement is a single enterprise agreement, approved on 19 May 2014, with a nominal expiry date of 14 January 2017.

[3] The Australian Workers’ Union (AWU), being a party to the Agreement has signed a copy of the variations sought.

Variation

[4] The variations sought by the applicant are with respect to the following clauses of the Agreement:

1. Clause 8 - Classifications

Deleting the Operator Class 1 classification

2. Clause 11- Highest Function

Replacement of amended cl.11.1 regarding the performance of work functions

3. Site Schedule S1.2

Deleting the 12 hour shift wage rate schedule pertaining to Operator Class 1

4. Clause 19 – Redundancy

Insertion of new sub-clause 19.8 which states that any employee who is made redundant within a 6 month period of 4 March 2016, will have their entitlements paid out at the rate of pay prior to the variation to the Agreement.

[5] A copy of the variations are attached at Annexure A of this decision.

Background

[6] On 6 April 2016, I wrote to the Applicant seeking additional information and submissions in support of its application. By way of email the Applicant provided additional information on 8 April 2016 and proof of its change of name from Transpacific Industries Pty Ltd to Cleanaway Operations Pty Ltd.

[7] The Applicant stated that the variations sought were owing to a decline in economic conditions which had adversely affected the profitability of the business. The Applicant submitted that there was a need for a reduction in operating costs.

[8] The Applicant also submitted that at least one of the variations sought pertaining to the change to Highest Function clause 11 was made at the request of the Australian Workers’ Union.

Relevant legislation

[9] A vote supporting the variations occurred on 4 March 2016, the application to vary the Agreement was lodged on 17 March 2016, satisfying the 14 day time frame for lodgement prescribed under s.210(3)(a) of the Act.

[10] Section 210 of the Act specifies when the Fair Work Commission must approve a variation of an enterprise agreement (my underline):

“Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.”

[11] The Employer’s statutory declaration in support of variation of an enterprise agreement stated that 7 out of the 7 employees who voted, supported the variation. The Agreement covers 10 employees.

Approval

[12] There is nothing in the application which suggests that the approval of the variation raises serious public interest grounds. The variations to the Agreement relates to classification structure, highest function clause, pay rates and redundancy entitlements.

[13] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of the variations have been met.

[14] The variations to the Agreement are approved and, in accordance with s.216 of the Act, will operate on and from the date of this decision.

[15] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

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