Cleanaway Operations Pty Ltd T/A Cleanaway

[2021] FWCA 2256

[2021] FWCA 2256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2021/4212)

CLEANAWAY CARDINIA & GREATER MELBOURNE (MUNICIPAL) ENTERPRISE AGREEMENT 2020

Waste management industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 23 APRIL 2021

Application for approval of the Cleanaway Cardinia & Greater Melbourne (Municipal) Enterprise Agreement 2020.

[1] Cleanaway Operations Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Cleanaway Cardinia & Greater Melbourne (Municipal) 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 Notice of Employee Representational Rights (NERR) provides that the Agreement covers employees who are covered by the Waste Management Award 2010, and engaged in Municipal Services based at the Perry Rd Dandenong South depot and who are not already covered by a Municipal enterprise agreement (other than the Cardinia and Greater Melbourne Enterprise Agreement 2016) that Cleanaway is party to. However, clause 4 of the Agreement does not appear to limit the coverage to the Dandenong South depot and appears to suggest that the Agreement also applies to municipalities of Greater Melbourne. The Employer made submissions in relation to this error. 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 s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

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

[4] 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.

[5] 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, 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.

[6] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] 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.

[9] The Agreement was approved on 23 April 2021 and, in accordance with s 54, will operate from 30 April 2021. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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