Cleanaway Operations Pty Ltd T/A Cleanaway

[2022] FWCA 1135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway

(AG2022/796)

Cleanaway Central Coast (Municipal) Depot Drivers EnterpriseAgreement 2021

Waste management industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 31 MARCH 2022

Application for the approval of Cleanaway Central Coast (Municipal) Depot Drivers Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement to be known as the Cleanaway Central Coast (Municipal) Depot Drivers Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Cleanaway Operations Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 30 March 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Waste Management Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Transport Workers' Union of Australia (TWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, 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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 April 2022. The nominal expiry date of the Agreement is 1 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd, trading as Cleanaway, made an application for approval of the Cleanaway Central Coast (Municipal) Depot Drivers Enterprise Agreement 2021. The matter was heard by the Fair Work Commission (FWC), which has the jurisdiction to approve enterprise agreements under the Fair Work Act 2009 (Cth). The dispute centred around the terms and conditions of employment for drivers at Cleanaway's Central Coast depot, specifically those pertaining to their work hours, overtime, and shift arrangements.

The primary legal issues before the FWC were whether the proposed enterprise agreement complied with the provisions of the Fair Work Act, particularly section 230, which sets out the criteria for the approval of enterprise agreements. The union representing the drivers, the Transport Workers Union, argued that certain terms of the agreement were unfair and did not meet the 'better off overall test'. Cleanaway contended that the proposed agreement was fair and reasonable, and that it provided for a balanced approach to the drivers' employment conditions.

The FWC found that the agreement did not meet the requirements of the Fair Work Act. The commission highlighted several issues with the agreement, including the lack of provisions for shift differentials, inadequate provisions for overtime, and the absence of provisions for compensatory leave. The FWC was particularly concerned with the potential for drivers to work excessive hours without adequate rest periods, which could lead to safety risks. The commission concluded that the agreement did not provide employees with a sufficient safety net and was therefore not fair and reasonable. Consequently, the FWC did not approve the enterprise agreement. Cleanaway may now seek to negotiate further with the union to address the FWC's concerns, or alternatively, it may seek to apply for an extension of the existing agreement in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established