Cleanaway Operations Pty Ltd T/A Cleanaway

[2021] FWCA 2248

[2021] FWCA 2248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2021/4561)

CLEANAWAY SOLID WASTE SERVICES PILBARA REGION ENTERPRISE AGREEMENT 2020

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 27 APRIL 2021

Application for approval of the Cleanaway Solid Waste Services Pilbara Region Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Pilbara Region 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.

[2] The matter was allocated to my Chambers on 13 April 2021.

[3] On 20 April 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The access period provided was 6 days, as opposed to the 7 days required by the Act. In respect of the s.180(4) deficiency, I do not believe that the Applicant’s failure to allow the 7 clear day access period had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. The access period was only marginally shorter than the requirement is s.180(4) of the Act. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 20 April 2021. The undertaking deals with the following topics:

•  Clause 27.5(a) should be read as not including the words ‘other than a casual employee’.

•  The Company will not roster a Part-Time, Level 1 employee to work only a Saturday or a Sunday shift during the life of the Agreement.

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

[7] 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.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act. The model flexibility term is taken to be a term of the Agreement, and will replace clause 11 of the Agreement.

[9] The Trade Workers’ Union of Australia (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.

[10] 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.

[11] 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 November 2023.

COMMISSIONER

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