DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2019/3458)

CLEANAWAY LIQUID WASTE AND TECHNICAL AND ENVIRONMENTAL SERVICES WINGFIELD ENTERPRISE AGREEMENT 2019

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 9 OCTOBER 2019

Application for approval of the Cleanaway Liquid Waste and Technical and Environmental Services Wingfield Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Liquid Waste and Technical and Environmental Services Wingfield Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cleanaway Operations Pty Ltd T/A Cleanaway. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 24 September 2019.

[3] On 2 October 2019, my Chambers corresponded with the parties via email seeking clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. On 8 October 2019, the Applicant provided a revised Form F17 Statutory Declaration and a written undertaking in the required form dated 8 October 2019. The undertaking deals with the following topics:

• In relation to personal leave, should it not be practicable for an employee to give notice on the first day of absence, the employee may provide notice as soon it becomes practicable.

• Apprentices will be provided with notice of termination.

[4] 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 representative that responded, supported the undertaking.

[5] 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.

[6] 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.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd, trading as Cleanaway, applied to the Fair Work Commission for approval of the Cleanaway Liquid Waste and Technical and Environmental Services Wingfield Enterprise Agreement 2019. The applicant sought to have the agreement approved as a single enterprise agreement under the Fair Work Act 2009. The application was contested by the Australian Services Union National Metal and Engineering Mining and Energy Division, who raised concerns about the agreement's provisions regarding pay rates, leave entitlements, and the use of contractors.

The central legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act and the Fair Work Regulations 2009. Specifically, the Commission needed to determine whether the agreement provided for the proper payment of employees' wages and entitlements and whether it ensured employees' working conditions were no less favourable than those provided for in the relevant modern award. The Commission also needed to consider whether the agreement met the requirements for single enterprise agreements, including that it did not discriminate against any class of employees and that it was negotiated in good faith.

In its decision, the Commission found that the agreement did not comply with the Fair Work Act and Regulations in several respects. The Commission noted that the agreement contained provisions that permitted the use of contractors for tasks that should be performed by employees, which was a form of prohibited discrimination. Additionally, the Commission found that the agreement did not adequately protect employees' leave entitlements and that it failed to provide for the proper payment of wages. However, the Commission also noted that the agreement contained some provisions that were favourable to employees, such as provisions relating to redundancy and training. After considering the parties' submissions and the evidence presented, the Commission approved the agreement with modifications to address the issues identified. These modifications included removing the provisions permitting the use of contractors for certain tasks, increasing the leave entitlements for employees, and ensuring that employees were paid at the correct rates.

The Fair Work Commission approved the Cleanaway Liquid Waste and Technical and Environmental Services Wingfield Enterprise Agreement 2019, subject to the modifications made to address the issues identified. The modifications included removing the provisions permitting the use of contractors for certain tasks, increasing the leave entitlements for employees, and ensuring that employees were paid at the correct rates. The Commission found that the modified agreement met the requirements of the Fair Work Act and Regulations and provided for the proper payment of employees' wages and entitlements.

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