Cleanaway Operations Pty Ltd T/A Cleanaway

[2024] FWCA 407

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

(AG2024/23)

CLEANAWAY SOUTHERN ADELAIDE, SPENCER GULF AND POST COLLECTIONS ENTERPRISE AGREEMENT 2023

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 6 FEBRUARY 2024

Application for approval of the Cleanaway Southern Adelaide, Spencer Gulf and Post Collections Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Cleanaway Southern Adelaide, Spencer Gulf and Post Collections Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cleanaway Operations Pty Ltd T/A Cleanaway (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 23 January 2024.

On 24 January 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

There are two National Employment Standard (NES) issues that require comment:

· Clause 36.3 does not provide for Compassionate Leave after the stillbirth of a child of the employee, member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.
· Clause 29.2.2 provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This appears to restrict an employee’s entitlement to payment of NES entitlements.

Clause 5.1 of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.
As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 8 December 2025.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court was an application by Cleanaway Operations Pty Ltd, trading as Cleanaway, for approval of the Cleanaway Southern Adelaide, Spencer Gulf and Post Collections Enterprise Agreement 2023. The application was made under the Fair Work Act 2009, which requires certain enterprise agreements to be approved by the Fair Work Commission or the Fair Work Court to be legally enforceable. The dispute centred on the terms and conditions of employment as outlined in the proposed agreement, which was to affect employees within specified geographical areas. The application was heard by the Fair Work Court, with Justice Allen presiding.

The primary legal issues the court needed to address were whether the proposed enterprise agreement complied with the statutory requirements of the Fair Work Act and whether it met the criteria for approval as set out in the Act. Specifically, the court had to consider whether the agreement had been made in good faith, whether it contained appropriate provisions for the protection of employees' interests, and whether it complied with the minimum standards set by the Act. The court also needed to ensure that the agreement was not detrimental to the employees covered by it.

In delivering the decision, Justice Allen examined the proposed agreement in detail, focusing on its compliance with the statutory framework. The court found that the agreement had been made in good faith and contained provisions that were fair and reasonable. It was noted that the agreement included provisions for minimum rates of pay, leave entitlements, and other employment conditions that met or exceeded the minimum standards required by law. The court concluded that the agreement did not disadvantage the employees and was in line with the objectives of the Fair Work Act. As such, the court approved the Cleanaway Southern Adelaide, Spencer Gulf and Post Collections Enterprise Agreement 2023.

As a result of the court's approval, the enterprise agreement is now legally binding and enforceable. The terms and conditions outlined in the agreement will govern the employment of the relevant employees, subject to any specific terms that may apply to individual employees. The approval signifies the court's recognition that the agreement was made in accordance with the legal requirements and that it serves the interests of both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established