Cleanaway Operations Pty Ltd

[2022] FWCA 3047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd

(AG2022/2367)

Cleanaway Hydrocarbons Western Australia Enterprise Agreement 2022

Waste management industry
DEPUTY PRESIDENT BELL	MELBOURNE, 2 SEPTEMBER 2022

Application for approval of the Cleanaway Hydrocarbons Western Australia Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Cleanaway Hydrocarbons Western Australia Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cleanaway Operations Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

Pursuant to 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.

The Agreement was approved on 2 September 2022 and, in accordance with s.54, will operate from 9 September 2022. The nominal expiry date of the Agreement is 1 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd applied to the Fair Work Commission for approval of the Cleanaway Hydrocarbons Western Australia Enterprise Agreement 2022. The respondents, various unions, objected to the application on various grounds including concerns about the proposed agreement's provisions regarding wages and conditions. The Commission was tasked with determining whether the proposed agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement complied with the statutory requirements for enterprise agreements, including the "better off overall test" (BOOT) and ensuring that the agreement was not adversely affecting employees' existing rights. The Commission examined whether the proposed changes to wages and conditions would genuinely benefit the employees overall, considering factors such as increased wages, reduced working hours, or other compensatory benefits.

The Commission found that the proposed agreement met the statutory requirements for approval. It concluded that the agreement was likely to be better for the employees overall, considering the various benefits provided despite some initial concerns raised by the unions. The Commission highlighted that the proposed changes to wages and conditions were fair and reasonable, and that the agreement did not adversely affect existing employee rights. Consequently, the Commission approved the Cleanaway Hydrocarbons Western Australia Enterprise Agreement 2022.

The final order was that the Cleanaway Hydrocarbons Western Australia Enterprise Agreement 2022 be approved, effective from the date of the Commission's decision. This approval allows the agreement to be implemented, governing the terms and conditions of employment for the relevant employees as per the provisions set out in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established