Cleanaway Operations Pty Ltd

[2024] FWCA 1678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Cleanaway Operations Pty Ltd

(AG2024/1267)

CLEANAWAY SOLID WASTE SERVICES GIPPSLAND ENTERPRISE AGREEMENT 2023

Waste management industry
COMMISSIONER CONNOLLY	MELBOURNE, 7 MAY 2024

Application for approval of the Cleanaway Solid Waste Services Gippsland Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Gippsland Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cleanaway Operations Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 22 April 2024.

The notification time for the Agreement under s.173(2) was 18 July 2023 and the Agreement was made on 5 April 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 30 April 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

The “Transport Workers’ Union of Australia”, 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.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 March 2026.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

Cleanaway Operations Pty Ltd applied to the Fair Work Commission for approval of the Cleanaway Solid Waste Services Gippsland Enterprise Agreement 2023. The applicants sought to have the agreement registered by the Commission under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for employees covered by the agreement. The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act, including provisions relating to minimum rates of pay, penalty rates, and procedural fairness. The applicants argued that the agreement was fair and reasonable, while the respondents raised concerns about the adequacy of the pay rates and the process by which the agreement was negotiated.

The Commission examined the agreement in light of the statutory requirements and relevant precedent. It considered the process by which the agreement was negotiated and whether it was done in good faith. The Commission also assessed the terms of the agreement, including the pay rates and conditions, to determine if they met the statutory minimum standards. After careful consideration, the Commission found that the agreement complied with the relevant provisions of the Fair Work Act. The process of negotiation was deemed to be in good faith, and the terms of the agreement were considered to be fair and reasonable, meeting the statutory minimum standards.

Accordingly, the Commission approved the Cleanaway Solid Waste Services Gippsland Enterprise Agreement 2023. The agreement was registered under the Fair Work Act, and the parties were bound by its terms. The Commission's decision confirmed that the agreement was a valid and enforceable enterprise agreement. The respondents' concerns about the pay rates and negotiation process were not sufficient to invalidate the agreement, as it met the statutory requirements and was fair and reasonable. The approval of the agreement provided certainty and stability for the employees and employers covered by it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established