DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2021/6503)

CLEANAWAY DANIELS VICTORIAN & TASMANIAN ENTERPRISE AGREEMENT 2020

Waste management industry
COMMISSIONER YILMAZ	MELBOURNE, 18 AUGUST 2021

Application for approval of the Cleanaway Daniels Victorian & Tasmanian Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Daniels Victorian & Tasmanian Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cleanaway Operations Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and in accordance with s.54, will operate from 25 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Cleanaway Operations Pty Ltd, sought approval of the Cleanaway Daniels Victorian & Tasmanian Enterprise Agreement 2020 from the Fair Work Commission. The agreement sought to regulate the terms and conditions of employment for certain employees of the applicant. The matter was heard by Commissioner J F. The central issue before the court was whether the agreement contained provisions that were contrary to the public interest, as stipulated in section 234 of the Fair Work Act 2009 (Cth). Specifically, the court had to determine whether the proposed variations to the existing agreements were fair and reasonable in all circumstances, and whether they complied with the good faith bargaining provisions under the Act.

In examining the application, the court considered the nature of the bargaining process, the fairness of the terms proposed, and the overall impact on the employees. The applicant argued that the proposed changes were necessary to remain competitive and to meet the economic realities faced by the industry. The court acknowledged the challenging economic environment and the need for flexibility in enterprise agreements. However, it also emphasised the importance of protecting employees' rights and ensuring that any variations were not detrimental to their interests. After a thorough analysis, the court concluded that the agreement, as presented, contained provisions that were not fair and reasonable in all circumstances, particularly in relation to certain pay and penalty rate provisions.

As a result, the court refused to approve the agreement in its current form. The applicant was given an opportunity to make further submissions and address the concerns raised by the court. The case highlights the importance of ensuring that enterprise agreements are fair and balanced, taking into account the interests of both employers and employees. The court's decision underscores the need for careful consideration of the economic context and the rights of employees when approving enterprise agreements.

Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established