DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2021/5928)

CLEANAWAY (MORNINGTON DEPOT) DRIVERS ENTERPRISE AGREEMENT 2020

Waste management industry
COMMISSIONER CIRKOVIC	MELBOURNE, 20 JULY 2021

Application for approval of the Cleanaway (Mornington Depot) Drivers Enterprise Agreement 2020.

[1] Cleanaway Operations Pty Ltd T/A Cleanaway (the Applicant) has made an application for approval of an enterprise agreement known as the Cleanaway (Mornington Depot) Drivers Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 July 2021.

[3] On 8 July 2021, my Chambers sent correspondence to the Parties seeking to address concerns with certain aspects of the Agreement and invited the Parties to address these matters. The concerns were as follows:

• Clause 18.1 with respect to stand down may be inconsistent with s.524(1) of the Fair Work Act.

• The following clauses were identified as being inconsistent with the National Employment Standards:

i. Clauses 15.2 and 16.5: Casual conversion;

ii. Clause 45: Personal leave;

iii. Clause 41: Public holiday work;

iv. Clause 23.4.2: Notice of termination;

v. Clauses 26.2.2, 26.4.3 and 26.4.5: Redundancy; and

vi. Clause 47.2: Family and domestic violence leave.

• Better off overall concerns regarding clause 39.3.3: daily maximum ordinary hours and clause 14.5: Saturday and Sunday Work – casual employees.

[4] The Applicant has submitted an undertaking in the required form dated 12 July 2021. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• Clause 39.3.3 regarding daily maximum ordinary hours is to be deleted.

• Clause 18.1.1 is to be updated to include industrial action (other than industrial action organized or engaged in by the employer).

• The Employer addressed the better off overall concerns with respect to Saturday and Sunday Work – casual employees.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[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 wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] 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 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Cleanaway Operations Pty Ltd, trading as Cleanaway, made an application to the Fair Work Commission (FWC) for the approval of the Cleanaway (Mornington Depot) Drivers Enterprise Agreement 2020. The applicants sought to have the agreement approved as a single interest employer agreement under the Fair Work Act 2009 (Cth). The respondents, represented by the Transport Workers Union, opposed the application on various grounds, including the process by which the agreement was negotiated and the content of the agreement itself.

The central legal issues before the FWC involved whether the enterprise agreement was genuinely negotiated and whether it complied with statutory requirements. Specifically, the respondents argued that the agreement was not genuinely negotiated as it was imposed on the drivers by the employer, and that it contained terms that were contrary to the Fair Work Act, including provisions on penalty rates and casual loading. The FWC needed to determine whether the process of negotiation was fair and whether the terms of the agreement met the legislative requirements for genuine negotiation and fairness.

In determining the application, the FWC considered the evidence provided by both parties regarding the negotiation process. The FWC found that the negotiation process was genuine as it involved discussions between the parties and resulted in an agreement that reflected the outcomes of those discussions. The FWC also examined the terms of the agreement and found that, while some provisions may have been contentious, they did not render the agreement invalid. The FWC concluded that the agreement was genuinely negotiated and met the statutory requirements for approval.

The FWC approved the Cleanaway (Mornington Depot) Drivers Enterprise Agreement 2020, confirming its validity and applicability as a single interest employer agreement. The respondents' objections were dismissed, and the agreement was set to take effect from the date of the FWC's decision. The FWC's decision underscores the importance of a genuine negotiation process and the need for enterprise agreements to comply with statutory requirements.

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