Cleanaway Operations Pty Ltd

[2022] FWCA 3236

[2022] FWCA 3236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd

(AG2022/3566)

Cleanaway SWS Mount Gambier Operations Enterprise Agreement 2022

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 19 SEPTEMBER 2022

Application for approval of the Cleanaway SWS Mount Gambier Operations Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Cleanaway SWS Mount Gambier Operations Enterprise Agreement 2022 (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.

1. The matter was allocated to my Chambers on 31 August 2022.

1. On 2 September 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 15 September 2022. The undertaking deals with the following topics:

·  An employee will not be required to work more than a maximum of 47 ordinary hours of work in any given week.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The Transport Workers’ Union (TWU), a bargaining representative for the Agreement, originally objected to the undertaking on the basis that they believed it was a significant change that could cause financial detriment to the employees. The TWU subsequently withdrew its objection.

1. For the sake of clarity, I make the following comments in respect of the effect of the undertaking, and its effect on the hours of work provisions and the entitlement to overtime:

·   Ordinary hours can only be worked between 4.00am and 5.00pm (Clause 21.2.1).

·   A maximum of 8 ordinary hours can be worked on a single day (Clause 21.2.2).

·   In any single week, an employee can only work a maximum of 47 ordinary hours (undertaking 1).

·   Over a period of 6 months, an employee can only work an average of 38 ordinary hours per week (Clause 21.1.2).

·   Any hours worked by day workers outside the parameters of ordinary hours outlined above will attract the overtime rates set out in clause 24.

·   Ordinary hours worked on public holidays and weekends will attract penalty rates as set out in clauses 33 and 25 respectively.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The TWU, 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.

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

1. 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 July 2026.

COMMISSIONER

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