Cleanaway Operations Pty Ltd T/A Cleanaway

[2019] FWC 217

[2019] FWC 217

The attached document replaces the document previously issued with the above code on 15 January 2019.

Corrects paragraph numbering.

Associate to Commissioner McKinnon

Dated 16 January 2019

[2019] FWC 217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Cleanaway Operations Pty Ltd T/A Cleanaway
(AG2018/6814)

TOXFREE - QUEENSLAND ALUMINA LTD (QAL) INDUSTRIAL SERVICES ENTERPRISE AGREEMENT 2015-2016

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 15 JANUARY 2019

Application that transferable instrument cover non-transferring employees.

Introduction

[1] Cleanaway Operations Pty Ltd T/A Cleanaway (Cleanaway) has applied for an order under section 319 of the Fair Work Act 2009 (Act) that the Toxfree – Queensland Alumina Ltd (QAL) Industrial Services Enterprise Agreement 2015-2016 (Toxfree Agreement) will cover any non-transferring employee in classifications set out in the Agreement.

[2] The Toxfree Agreement was made with ToxFree Solutions Limited (Toxfree), which was acquired by Cleanaway Waste Management Limited (Cleanaway Waste). Cleanaway is a wholly owned subsidiary of Cleanaway Waste. In the absence of an order in the form sought, new non-transferring employees would be covered by the Cleanaway Industrial Solutions Gladstone Aluminium Operators Greenfields Agreement 2016 (Cleanaway Agreement).

The relevant legislation

[3] Part 2-8 of the Act describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

[4] Section 311(1) defines “transfer of business” and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the non-transferring employee.

[5] In deciding whether to make orders of this kind, the Commission must take into account a range of factors set out in section 319(3) of the Act.

Consideration

[6] The Toxfree Agreement is an enterprise agreement approved by the Commission on 9 October 2015 and varied on 14 April 2016. It is a transferable instrument for the purposes of section 312(1)(a) of the Act.

[7] I am satisfied that there has been a transfer of business between Toxfree and Cleanway for the purposes of section 311(1) as:

(i) the employment of employees covered by the Toxfree Agreement terminated with Toxfree;

(ii) the employees were employed by Cleanaway immediately thereafter;

(iii) their work for Cleanaway is the same as the work they performed for Toxfree (the transferring work); and

(iv) Toxfree and Cleanaway are related entities.

The views of the new employer and employees affected by the order

[8] Cleanaway has filed a statutory declaration in support of the application by Ms Danielle Kavanagh, National Employee Relations Manager. According to Ms Kavanagh, it is the preference of Cleanaway to have the Toxfree Agreement apply to non-transferring employees. At the time the application was made, there were no non-transferring employees employed by Cleanaway.

Whether any employees would be disadvantaged by the order

[9] If the order is granted, employees will benefit from a number of more beneficial terms, including more beneficial rates of pay. I am satisfied that employees will not be disadvantaged if the application is granted. This factor weighs in favour of the application.

The nominal expiry date of the agreement

[10] The nominal expiry date of the Toxfree Agreement is 30 September 2016. This factor weighs in favour of the application.

Whether the transferable instrument would have a negative impact on productivity at Cleanaway

[11] Cleanaway says that applying the Toxfree Agreement to future non-transferring employees will not have a negative impact on productivity. I am satisfied that granting the order would promote productivity and efficiency by streamlining terms and conditions of employment so that they apply in the same way to all employees performing work covered by the Toxfree Agreement. This factor weighs in favour of the application.

Whether Cleanaway would incur significant economic disadvantage by coverage of the Agreement

[12] Cleanaway submits, and I accept, that the application of the Toxfree Agreement will not cause any economic disadvantage to it. This factor is a neutral consideration.

Degree of business synergy between the Agreement and other workplace instruments

[13] There is some synergies between the Cleanaway Agreement and the Toxfree Agreement, however the classifications between the agreements are not the same and can result in employees receiving different pay and conditions when doing the same work. Application of the Toxfree Agreement to all employees will result in greater business synergy between the Toxfree Agreement and conditions in the workplace. As noted above, it will also reduce the opportunity for conflict relating to employees receiving different terms and conditions of employment while performing the same work. This factor weighs in favour of the application.

The public interest

[14] There is nothing before me to suggest that granting the application will adversely affect the public interest. I am satisfied that it is not contrary to the public interest to make the order sought.

Conclusion

[15] Having regard to each of the factors set out above, I am satisfied that the conditions for the making of an order in the terms sought have been met. The application is granted.

[16] An order [PR703846] will be issued separately to this decision.

COMMISSIONER

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