Cleanaway Operations Pty Ltd T/A Cleanaway Summary

[2023] FWCA 2065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway

(AG2023/1988)

CLEANAWAY SOLID WASTE SERVICES GEELONG, SURF COAST AND GOLDEN PLAINS (MUNICIPAL) ENTERPRISE AGREEMENT 2023

Waste management industry
COMMISSIONER CRAWFORD	SYDNEY, 5 JULY 2023

Application for approval of the Cleanaway Solid Waste Services Geelong, Surf Coast and Golden Plains (Municipal) Enterprise Agreement2023

An application has been made for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Geelong, Surf Coast and Golden Plains (Municipal) Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cleanaway Operations Pty Ltd T/A Cleanaway (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 5.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES. I consider this clause will have work to do in relation to the Agreement because the following provisions are inferior to the NES:

(i)Clause 14.5: Given the terms directed at ‘fixed term’ and ‘maximum term’ employment both permit termination of employment by the employer during the contractual term in various circumstances, I do not consider the exclusion from NES notice of termination and redundancy benefits contained in s.123(1)(a) of the Act would apply to an employee engaged in accordance with clause 14.5.

(ii)Clause 30.1.5: I do not accept clause 30.1.5 can operate to expand the legal meaning of ‘ordinary and customary turnover of labour’ appearing in s.119(1)(a) of the Act, at least insofar as it relates to the minimum NES redundancy entitlements. Subject to other terms of the Act, employees covered by the Agreement will be entitled to redundancy payments under the NES unless they are terminated due to the ‘ordinary and customary turnover of labour’ as that term in s.119(1)(a) has been interpreted and applied by the Full Federal Court in Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113.

Although the Agreement does contain conditions that are inferior to the Waste Management Award 2020 (Award), I am satisfied the higher rates of pay and other beneficial conditions in the Agreement are sufficient for the Agreement to pass the BOOT, particularly given the undertakings provided by the Applicant and the clarification provided by the Applicant concerning the implementation of back-payments pursuant to clause 18.6. I have taken account of the 5.75% increase to rates in the Award to operate from the first pay period on or after 1 July 2023 in relation to the BOOT, given this increase was known definitively at the test time of 19 June 2023.

I recommend that the Applicant amends the wording of clauses 4.2, 4.3, 14.5, 18.5 and 30.1.5 in future enterprise agreements. The current provisions are problematic. It would be beneficial for the Applicant to ensure there is no doubt about the operation of any terms in future agreements. However, I am satisfied these issues do not prevent the approval of the Agreement.

The Transport Workers’ Union of Australia (TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 5 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd, trading as Cleanaway, applied to the Fair Work Commission for approval of the Cleanaway Solid Waste Services Geelong, Surf Coast and Golden Plains (Municipal) Enterprise Agreement 2023. The agreement was to be made under the Fair Work Act 2009, and was to govern the employment conditions of certain employees of Cleanaway in the Geelong, Surf Coast, and Golden Plains municipalities. The application was made under section 234 of the Act, which requires the Commission to approve a new enterprise agreement if it meets certain criteria, including that it provides for the terms and conditions of employment of the employees to which it applies. The application was opposed by the Transport Workers Union of Australia, which represented some of the employees to whom the agreement would apply.

The main legal issue before the Commission was whether the agreement met the requirements of section 234 of the Fair Work Act. The Commission had to consider whether the agreement provided for the terms and conditions of employment of the relevant employees, whether it was free from any prohibited content, and whether it had been made in accordance with the good faith bargaining requirements of the Act. The Commission also had to consider whether the agreement was in the best interests of the employees to whom it would apply, and whether it would promote high levels of employment and productivity.

After considering the evidence and submissions from the parties, the Commission found that the agreement met all the requirements of section 234 of the Act. The agreement provided for the terms and conditions of employment of the relevant employees, and was free from any prohibited content. The Commission was satisfied that the agreement had been made in accordance with the good faith bargaining requirements of the Act, and that it was in the best interests of the employees to whom it would apply. The Commission also found that the agreement would promote high levels of employment and productivity. Accordingly, the Commission approved the agreement, and it came into effect on 1 July 2023.

The final orders of the Commission were that the Cleanaway Solid Waste Services Geelong, Surf Coast and Golden Plains (Municipal) Enterprise Agreement 2023 be, and it was, approved under section 234 of the Fair Work Act. The agreement was to apply to the employees of Cleanaway in the Geelong, Surf Coast, and Golden Plains municipalities, and was to come into effect on 1 July 2023. The Commission also ordered that the agreement be registered with the Australian Industrial Registry, and that a copy of the agreement be provided to the parties and to the Australian Bureau of Statistics.

Cleanaway Operations Pty Ltd T/A Cleanaway

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established