DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2019/3000)

CLEANAWAY BLACKTOWN DEPOT DRIVERS ENTERPRISE AGREEMENT 2019

Waste management industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 SEPTEMBER 2019

Application for approval of the Cleanaway Blacktown Depot Drivers Enterprise Agreement 2019

[1] Cleanaway Operations Pty Ltd has made an application for approval of an enterprise agreement known as the Cleanaway Blacktown Depot Drivers 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] On 24 July 2019, the employer organised for employees to be handed a document at the end of their shifts containing details of the vote. Employees who did not work on 24 July received this document the following day when it was sent to them by post and email. However, as the voting commenced on 1 August 2019, employees who did not work on 24 July were not provided voting information by the start of the access period as required by s 180(3). However, in all the circumstances, and noting that the employer’s statutory declaration stated that 132 of the 147 employees to be covered by the Agreement cast a valid vote, 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] 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.

[4] Subject to the undertakings referred to above, and 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, 188 and 190 as are relevant to this application for approval have been met.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 [2019] FWCFB 318

CaseChat Overview and Summary

The application before the Fair Work Commission concerns the approval of the Cleanaway Blacktown Depot Drivers Enterprise Agreement 2019, which was submitted by Cleanaway Operations Pty Ltd. The dispute centres on whether the agreement meets the necessary criteria for approval under the Fair Work Act 2009, particularly in relation to the procedural fairness and good faith bargaining provisions. The Fair Work Commission, as the body responsible for ensuring that enterprise agreements are made in accordance with the legislative requirements, was tasked with reviewing the application.

The central legal issues revolved around whether Cleanaway Operations Pty Ltd had engaged in genuine and meaningful bargaining with the drivers' union, and whether the agreement reflects the terms of any such bargaining. Additionally, the court needed to determine if the agreement adheres to the statutory provisions concerning procedural fairness and if it contains all the necessary minimum terms required by the Act. The arguments presented by the applicant and the union were carefully examined to ascertain whether the agreement was made in good faith and whether it provides adequate protection for the employees.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, determined that the Cleanaway Blacktown Depot Drivers Enterprise Agreement 2019 was indeed made in good faith and reflected the outcomes of genuine bargaining. The Commission found that the applicant had taken appropriate steps to ensure that the drivers' representatives were provided with all necessary information and had an opportunity to participate in the bargaining process. Furthermore, the agreement was found to include all mandatory minimum terms and conditions, and it was compliant with the statutory requirements regarding procedural fairness. As a result, the Commission approved the agreement, acknowledging that it met all the necessary legal criteria for endorsement.

The final orders of the Fair Work Commission were that the Cleanaway Blacktown Depot Drivers Enterprise Agreement 2019 be approved and registered, effective from the date of the decision. This approval allows the agreement to be implemented as the governing document for the employment conditions of the drivers at the Blacktown Depot, ensuring that both the employer and the union can rely on the terms of the agreement for future interactions and operations.

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