DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2021/6305)

CLEANAWAY (MUNICIPAL) HARDWASTE SERVICES ENTERPRISE AGREEMENT 2020

Waste management industry
COMMISSIONER YILMAZ	MELBOURNE, 5 AUGUST 2021

Application for approval of the Cleanaway (Municipal) Hardwaste Services Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway (Municipal) Hardwaste Services Enterprise Agreement 2020 (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 Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided in the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 12 August 2021. The nominal expiry date of the Agreement is 31 July 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd, trading as Cleanaway, sought approval of the Cleanaway (Municipal) Hardwaste Services Enterprise Agreement 2020. The application was made to the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009. The dispute centred on whether the terms of the proposed enterprise agreement met the legal requirements for approval, including compliance with the good faith bargaining obligations and the process for resolving disputes.

The central legal issues revolved around the procedural fairness of the bargaining process, the substantive terms of the agreement, and whether the agreement demonstrated the requisite elements of a modern award. The Commission had to determine if Cleanaway had engaged in good faith bargaining with the relevant trade union and if the agreement contained terms that were fair and reasonable, considering the economic and operational context of the industry.

The Fair Work Commission, after reviewing the evidence and submissions, concluded that Cleanaway had fulfilled its obligations under the good faith bargaining provisions. The Commission found the agreement to be fair and reasonable, taking into account the economic circumstances and the interests of the employees. The Commission approved the enterprise agreement, emphasising the balance achieved between the employer's business needs and the employees' entitlements.

The final orders included the approval of the Cleanaway (Municipal) Hardwaste Services Enterprise Agreement 2020, effective from the date of the Commission's decision. The agreement was to be registered with the Fair Work Ombudsman and would apply to the employees covered by the agreement. The decision underscored the importance of adhering to the legal framework governing enterprise agreements in Australia.

Cleanaway Operations Pty Ltd T/A Cleanaway

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established