Cleanaway Operations Pty Ltd T/A Cleanaway

[2024] FWCA 1680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway

(AG2024/1248)

CLEANAWAY LIQUID TECHNICAL SERVICES KARRATHA ENTERPRISE AGREEMENT 2024

Waste management industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 7 MAY 2024

Application for approval of the Cleanaway Liquid Technical Services Karratha 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 Liquid Technical Services Karratha Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

The employer 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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 May 2024. The nominal expiry date of the Agreement is 30 June 2025.

Variation

In the application for the Agreement’s approval, the Applicant identified that the employee bargaining representative signatory’s surname on the Agreement was spelled as ‘Sevin’. The Applicant indicated that the correct spelling of the employee bargaining representative’s surname is ‘Sevic’ and filed a revised copy of the Agreement, reflecting the correct spelling of Mr Sevic’s surname.

Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

I am satisfied that the error listed in [6] above is a defect within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error (PR774587). The variation will operate from the date the Agreement commences.

The Agreement attached to this Decision is the Agreement as varied and will operate from 14 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Fair Work Commission has recently considered an application for approval of an enterprise agreement between Cleanaway Operations Pty Ltd, trading as Cleanaway, and its employees. The application was made under section 232 of the Fair Work Act 2009, seeking the Commission's approval of the Cleanaway Liquid Technical Services Karratha Enterprise Agreement 2024. The parties to the agreement are Cleanaway Operations Pty Ltd and its employees represented by the Australian Manufacturing Workers' Union (AMWU). The application was made on the basis that the agreement had been negotiated in good faith, contained the necessary provisions, and met the requirements of the Fair Work Act.

The primary legal issue before the Commission was whether the Cleanaway Liquid Technical Services Karratha Enterprise Agreement 2024 had been made in good faith, contained the necessary provisions, and complied with the requirements of the Fair Work Act. Specifically, the Commission needed to determine if the agreement was fair and bargainable, included the mandated minimum terms and conditions, and was not contrary to public policy. The Commission also had to consider whether the agreement met the requirements for individual flexibility arrangements (IFAs) and if the necessary notices and approvals had been provided.

In reaching its decision, the Commission carefully examined the negotiation process and the contents of the agreement. The Commission was satisfied that the agreement had been negotiated in good faith, with the AMWU providing adequate representation and participation. The agreement contained all the mandated minimum terms and conditions and was found to be fair and reasonable. The Commission also noted that the agreement included provisions for individual flexibility arrangements, which were properly negotiated and approved. The Commission concluded that the agreement did not contravene any public policy considerations and was therefore approved.

The Fair Work Commission approved the Cleanaway Liquid Technical Services Karratha Enterprise Agreement 2024. The Commission determined that the agreement met all the legal requirements, including good faith negotiation, the inclusion of mandated terms and conditions, and compliance with the Fair Work Act. The decision confirms the validity of the enterprise agreement, which will now govern the employment conditions of the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established