DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2019/4051)

CLEANAWAY SOLID WASTE SERVICES WESTERN AUSTRALIA MID-WEST REGION ENTERPRISE AGREEMENT 2019

Waste management industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 7 NOVEMBER 2019

Application for approval of the Cleanaway Solid Waste Services Western Australia Mid-West Region Enterprise Agreement 2019

[1] Cleanaway Operations Pty Ltd has made an application for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Western Australia Mid-West Region Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The application is generally in order however it appears from the employer’s statutory declaration that employees were not provided with full details of the voting instructions seven clear days before the vote. In all the circumstances, including the fact that the voting period spanned a full week, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] 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.

[4] 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.

[5] The Agreement was approved on 7 November 2019 and, in accordance with s 54, will operate from 14 November 2019. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd applied to the Fair Work Commission for the approval of the Cleanaway Solid Waste Services Western Australia Mid-West Region Enterprise Agreement 2019. The application was brought before the Commission to consider whether the agreement met the requirements under the Fair Work Act 2009 for enterprise agreements to be approved. The applicants argued that the agreement was fairly and properly negotiated and met the necessary criteria for approval.

The legal issues the court had to address included whether the agreement was an enterprise agreement within the meaning of the Fair Work Act, whether it had been fairly and properly negotiated, and whether it complied with the provisions of the Act that apply to enterprise agreements. The court also needed to determine if the agreement provided for proper procedures for the resolution of disputes and met the procedural requirements for approval by the Fair Work Commission.

In delivering its decision, the Fair Work Commission considered the negotiation process and the contents of the agreement. The Commission was satisfied that the agreement was an enterprise agreement, had been fairly and properly negotiated, and met all the necessary requirements for approval. The agreement included provisions for dispute resolution and met the procedural requirements for approval by the Fair Work Commission. The Commission approved the Cleanaway Solid Waste Services Western Australia Mid-West Region Enterprise Agreement 2019, noting the comprehensive negotiation process and the agreement's compliance with all statutory requirements.

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