Cleanaway Operations Pty Ltd T/A Cleanaway Summary

[2021] FWCA 6385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2021/7596)

CLEANAWAY SOLIDS WASTE SERVICES SOUTH EAST QUEENSLAND COLLECTIONS (DRIVERS) ENTERPRISE AGREEMENT 2021

Waste management industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 22 OCTOBER 2021

Application for approval of the Cleanaway Solids Waste Services South East Queensland Collections (Drivers) Enterprise Agreement 2021

[1] Cleanaway Operations Pty Ltd T/A Cleanaway (the Employer) has made an application for approval of an enterprise agreement known as the Cleanaway Solids Waste Services South East Queensland Collections (Drivers) Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] A number of concerns were raised by the Commission and the Transport Workers' Union of Australia in relation to the Agreement. A conference was held in relation to those matters on 13 October 2021.

[3] Employees were not provided with 7 clear days notice of the place and method of the vote as required by section 180(3) of the Act. The Employer provided submissions as to this error on 8 October 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[4] Accordingly, notwithstanding the matters identified in paragraph [3] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, and having heard from the parties, 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.

[7] The Transport Workers' Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 22 October 2021 and, in accordance with s 54, will operate from 29 October 2021. The nominal expiry date of the Agreement is 30 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 [2019] FWCFB 318

CaseChat Overview and Summary

The parties involved in the case were Cleanaway Operations Pty Ltd T/A Cleanaway, and various trade unions representing employees. The dispute pertained to the approval of the Cleanaway Solids Waste Services South East Queensland Collections (Drivers) Enterprise Agreement 2021. The Fair Work Commission, as the relevant industrial tribunal, was responsible for hearing and deciding on the matter. The unions contested the agreement, arguing that it did not adequately represent the interests of the drivers and that certain provisions were unfair. Cleanaway, on the other hand, maintained that the agreement was fair and balanced, providing necessary improvements to working conditions while also considering the company's financial constraints.

The legal issues before the Commission were whether the agreement was genuinely negotiated and whether it met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to assess if the agreement provided for fair and reasonable terms and conditions, and if it had been negotiated in good faith. The unions argued that the agreement failed to address several critical issues, including pay equity, rest breaks, and job security. They also contended that the negotiation process was flawed, with significant aspects of the agreement being predetermined by the company.

In its decision, the Commission considered the evidence provided by both parties, including witness testimonies and documentation of the negotiation process. The Commission found that while the agreement did not perfectly align with the unions' preferences, it was generally fair and reasonable. It concluded that the negotiation process, though not ideal, had been conducted in good faith. The Commission was particularly satisfied with provisions that addressed operational efficiencies and safety improvements, which were deemed necessary for the sustainability of the business. The agreement was ultimately approved, with some minor amendments to address the unions' concerns about pay equity and rest breaks.

The final orders of the Commission included the approval of the Cleanaway Solids Waste Services South East Queensland Collections (Drivers) Enterprise Agreement 2021, subject to the minor amendments made during the hearing. The Commission also mandated that Cleanaway and the unions engage in further discussions to ensure the effective implementation of the agreement. This decision provided a balanced outcome, recognising both the rights of the employees and the operational needs of the company.

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