Cleanaway Operations Pty Ltd

[2020] FWCA 5925

[2020] FWCA 5925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2020/3045)

CLEANAWAY SOLID WASTE SERVICES (C&I) WOLLONGONG ENTERPRISE AGREEMENT 2020

Waste management industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 5 NOVEMBER 2020

Application for approval of the Cleanaway Solid Waste Services (C&I) Wollongong Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Cleanaway Solid Waste Services (C&I) Wollongong 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 Agreement does not cover all of the employees of Cleanaway Operations Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I have noted that the Notice of Employee Representational Rights (NERR) indicated that the name of the enterprise agreement Cleanaway Operations Pty Ltd was bargaining for was the Cleanaway Solid Waste Services (C&I) Wollongong Enterprise Agreement 2019. However, I have also noted that the NERR was given to employees on 5 July 2019 and 9 July 2019 and bargaining took some time, extending into 2020. As such, I am satisfied the difference in names is capable of being categorised as a “minor technical error” as contemplated by s.188(2) of the Act and further, I consider I can be satisfied that the employees were not likely to have been disadvantaged by it, given that 18 of 21 employees covered by the Agreement at the time of the vote cast a valid vote.

[4] I am therefore satisfied that this matter relating to the name of the Agreement was a minor technical error, the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed notwithstanding it. 1

[5] I also note that Clause 13.2(b) of the Agreement provides that if an employee fails to give the required notice of termination, Cleanaway Operations Pty Ltd may withhold “monies” due to the employee on termination under the Agreement of an amount not exceeding the amount the employee would have been paid under the Agreement, in respect of the period of notice required less any period of notice actually given by the employee. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act if applied in relation to “monies” due that relate to untaken paid annual leave, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work

Regulations 2009 is taken to be a term of the Agreement.

[7] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[8] 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) and based on the statutory declaration provided by the TWU, I note that the Agreement covers the TWU.

[9] The Agreement is approved and, in accordance with s.54, will operate from 12 November 2020. The nominal expiry date of the Agreement is 1 July 2022.

DEPUTY PRESIDENT

 1   Fair Work Act 2009, s.188(2).

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