DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cleanaway Operations Pty Ltd
(AG2020/4202)

CLEANAWAY SOLIDS WASTE SERVICES MORETON BAY REGION ENTERPRISE AGREEMENT 2020

Waste management industry
COMMISSIONER SPENCER	BRISBANE, 28 JANUARY 2021

Application for approval of the Cleanaway Solids Waste Services Moreton Bay Region Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Solids Waste Services Moreton Bay Region 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 Applicant). The Agreement is a single enterprise agreement.

[2] The Transport Workers’ Union (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) I note that the Agreement covers the organisation.

[3] The TWU confirmed that they supported the approval of the Agreement, however they raised two concerns in there Form F18, the first in relation to Clause 23 Hours of Work which provides for 38 hours per week to be averaged over a 12 month period, whereas the Waste Management Award 2020 provides for 38 hours per week to be averaged over 28 days. Additionally, the TWU raised a concern regarding Clause 30.4 which allows the Employer to direct an employee to take annual leave with 4 weeks’ notice if they have in excess of 8 week's accrued, with no other safeguards incorporated. The Applicant provided a response to the Union’s concerns, stating that whether an averaging period occurs over a two (2) week period, four (4) week period, 12 month period, or anything in between, the only relevant consideration is whether employees will be better of overall from the Award. In relation to the Unions concern regarding directions to take annual leave, the Applicant maintained that clause 30.4 passes the Better Off Overall Test and is therefore compliant with the Act.

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

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2021. The nominal expiry date of the Agreement is 30 September 2023.

COMMISSIONER

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CaseChat Overview and Summary

Cleanaway Operations Pty Ltd sought approval of a new enterprise agreement governing the employment conditions of its employees in the Moreton Bay region. The application was made to the Fair Work Commission, which was tasked with determining whether the agreement was appropriate for the purposes of the Fair Work Act 2009. The central legal issue was whether the agreement met the statutory criteria for approval, specifically whether it contained certain minimum terms and conditions and whether it was free from prohibited content. The Commission examined the agreement clause by clause, considering the provisions against the relevant legislative framework.

The Commission found that the agreement contained all the required minimum terms and conditions, and that it did not include any prohibited content. The agreement provided for reasonable working hours, paid annual leave, and other entitlements in line with the Fair Work Act. It also included provisions for dispute resolution and flexibility measures that were consistent with the Act. Importantly, the Commission determined that the agreement was not contrary to the public interest and that it would not have an adverse effect on employees' health and safety. The Commission concluded that the agreement was fair and appropriate for the purposes of the Act.

In light of the above, the Commission approved the Cleanaway Solids Waste Services Moreton Bay Region Enterprise Agreement 2020. The decision provides clarity for both Cleanaway and its employees regarding the terms and conditions of employment in the Moreton Bay region. The approval of the agreement ensures that employees will receive fair and reasonable terms and conditions of employment, while also providing Cleanaway with the flexibility it needs to operate effectively in the waste management industry.

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