Cleanaway Operations Pty Ltd T/A Cleanaway

[2022] FWCA 4513

[2022] FWCA 4513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway

(AG2022/5169)

Cleanaway Tullamarine Depot Drivers Enterprise Agreement 2020

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 20 DECEMBER 2022

Application for approval of the Cleanaway Tullamarine Depot Drivers Enterprise Agreement 2020

1. An application has been made for approval of an enterprise agreement known as the Cleanaway Tullamarine Depot Drivers Enterprise Agreement 2020 (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.

1. The matter was allocated to my Chambers on 16 December 2022.

1. On 20 December 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·   Clause 33.6 of the Agreement provides that the employer may direct an employee to work on a public holiday with five days’ notice. This may be inconsistent with s.114(1) of the Act, which provides that employees are entitled to absence on a public holiday.

·   Clause 35.4 of the Agreement does not appear to provide compassionate leave for stillbirth/miscarriage consistent with s.104(1)(b) and (c) of the Act.

·   Clause 39.2 defines family and domestic violence as violent, threatening, or otherwise abusive behaviour by a family member of the employee. It is unclear if this extends to a person related to the employee by Aboriginal or Torres Strait Islander kinship rules consistent with S.106B(3)(b) of the Act.

1. Clause 5 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Transport Workers’ Union (TWU), 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.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. 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 1 March 2024.

COMMISSIONER

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