Cleanaway Operations Pty Ltd

[2024] FWCA 1114

[2024] FWCA 1114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Cleanaway Operations Pty Ltd

(AG2024/469)

CLEANAWAY LIQUID WASTE AND TECHNICAL SERVICES WINGFIELD ENTERPRISE AGREEMENT 2023

Waste management industry
COMMISSIONER TRAN	MELBOURNE, 2 APRIL 2024

Application for approval of the Cleanaway Liquid Waste and Technical Services Wingfield Enterprise Agreement 2023.

1. Cleanaway Operations Pty Ltd (Cleanaway) had applied for approval of an enterprise agreement known as the Cleanaway Liquid Waste and Technical Services Wingfield Enterprise Agreement 2023 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

1. The Agreement is a single enterprise agreement.

1. The Transport Workers’ Union of Australia was a bargaining representative for the Agreement.

1. It appears that the Employer issued an earlier version of the Notice and therefore did not comply with s 174(1A). Aside from use of the earlier version of the Notice, there were no substantive differences. I have previously detailed the differences between the pre-6 June 2023 and post-6 June 2023 Notice in Application by AJS Electrical Contracting Pty Ltd T/A AJS Electrical Contracting [2023] FWC 3343 at [34]. I consider the use of the earlier Notice is a minor technical error.

1. I am satisfied with the Employer’s and the Union’s responses to my concerns regarding the use of the earlier Notice and I disregard the error in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error.

1. The Union raised a concern regarding whether an employee who works a shift 11 hours or longer, on the 9.5 ordinary hours arrangement of the Agreement would be better off compared to the Award. The Employer provided calculations, which accounting for superannuation contributions, satisfied me that employees would be better off overall taking into account a global assessment of the Agreement.

1. I note that clause 29.2 – Notice by an Employee is likely to be inconsistent with the National Employment Standards. The Agreement includes clause 5.1 which gives the NES precedence, and also requires that the Employer will not make any deductions unless an employee has provided a written authority under clause 29.2.3 of the Agreement. As a result, I am satisfied that the more beneficial entitlements of the NES will prevail.  

1. The Agreement did not include a consultation term that complied with s 205 of the Act. Therefore, under s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

1. The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, gave notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 9 April 2024.

1. In accordance with clause 2.2 of the Agreement, the nominal expiry date of the Agreement is 2 April 2027, being the 3-year anniversary from the date on which it is approved.

COMMISSIONER

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