Cleanaway Operations Pty. Ltd. T/A Cleanaway

[2024] FWCA 4223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cleanaway Operations Pty. Ltd. T/A Cleanaway

(AG2024/4123)

CLEANAWAY SOLID WASTE SERVICES VCRR COOLAROO AND LAVERTON NORTH ENTERPRISE AGREEMENT 2024

Waste management industry
COMMISSIONER MIRABELLA	MELBOURNE, 29 NOVEMBER 2024

Application for approval of the Cleanaway Solid Waste Services VCRR Coolaroo and Laverton North Enterprise Agreement 2024

Cleanaway Operations Pty. Ltd. T/A Cleanaway (the Employer) has made an application for approval of an enterprise agreement known as the Cleanaway Solid Waste Services VCRR Coolaroo and Laverton North Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 14 August 2024 and the Agreement was made on 9 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

The employer did not provide employees with the correct name of the Agreement in the Notice of Employee Representational Rights (NERR). Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error. 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 to within the meaning of s.188(5) of the FW Act.

Pursuant to s 205(2) of the FW Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

The Agreement was approved on 2 December 2024 and, in accordance with s.54, will operate from 9 December 2024. The nominal expiry date of the Agreement is 2 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleanaway Operations Pty. Ltd., trading as Cleanaway, applied to the Fair Work Commission for approval of the Cleanaway Solid Waste Services VCRR Coolaroo and Laverton North Enterprise Agreement 2024. The applicants sought the approval of the enterprise agreement under section 232 of the Fair Work Act 2009. The application was made by the employer, Cleanaway, and the relevant union, the Transport Workers Union of Australia, which represents the employees involved.

The legal issues before the Fair Work Commission included whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions, including pay and conditions, and whether it included a process for resolving disputes. The Commission also had to consider whether the agreement satisfied the statutory requirement for majority support from the relevant employees.

In considering these issues, the Fair Work Commission examined the provisions of the proposed enterprise agreement, the submissions of the parties, and the evidence provided. The Commission found that the agreement contained fair and reasonable terms and conditions for the employees, including provisions for pay, leave, and dispute resolution. The Commission also determined that the agreement had been supported by a majority of the relevant employees. Based on these findings, the Commission approved the Cleanaway Solid Waste Services VCRR Coolaroo and Laverton North Enterprise Agreement 2024.

The Fair Work Commission's decision to approve the enterprise agreement was made on the basis of the evidence and submissions provided by the parties. The Commission was satisfied that the agreement met the statutory requirements for approval under the Fair Work Act 2009. The final orders of the Commission included the approval of the Cleanaway Solid Waste Services VCRR Coolaroo and Laverton North Enterprise Agreement 2024, which would now apply to the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established