Cleanaway Operations Pty Ltd T/A Cleanaway

[2024] FWCA 3509

[2024] FWCA 3509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway

(AG2024/3553)

CLEANAWAY LIQUID WASTE THOMASTOWN & CAMPBELLFIELD ENTERPRISE AGREEMENT 2024

Waste management industry
COMMISSIONER MIRABELLA	MELBOURNE, 4 OCTOBER 2024

Application for approval of the Cleanaway Liquid Waste Thomastown & Campbellfield Enterprise Agreement 2024.

1. Cleanaway Operations Pty Ltd T/A Cleanaway (the Employer) has made an application for approval of an enterprise agreement known as the Cleanaway Liquid Waste Thomastown & Campbellfield 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.

1. 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 24 June 2024 and the Agreement was made on 28 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The notice of employee representational rights provided to employees was drafted using an outdated template and was, therefore, not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by this 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.

1. 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 and 188, as are relevant to this application for approval, has been met.

1. 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.

2. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

• Clause 15: Casual conversion

• Clause 35.3: Compassionate leave

1. However, noting clause 5.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers’ Union of Australia, 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.

1. The Agreement was approved on 4 October 2024 and, in accordance with s.54, will operate from 11 October 2024. The nominal expiry date of the Agreement is 26 October 2026.

COMMISSIONER

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