Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd Summary

[2022] FWCA 1613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

(AG2022/1039)

Cleanaway Erskine Park Maintenance Enterprise Agreement 2022

Waste management industry
DEPUTY PRESIDENT EASTON	SYDNEY, 13 MAY 2022

Application for approval of the Cleanaway Erskine Park Maintenance Enterprise Agreement 2022.

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd (the Employer) has made an application for the approval of the Cleanaway Erskine Park Maintenance Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 27.3 – Public Holidays (Substitution)
- Clause 28.1 – Annual Leave
- Clause 30.4(a) – Personal/Carer’s Leave
- Clause 31 – Compassionate Leave

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 May 2022. The nominal expiry date of the Agreement is 13 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd, the Fair Work Commission was asked to approve the Cleanaway Erskine Park Maintenance Enterprise Agreement 2022. This agreement was the result of negotiations between Cleanaway Operations and the Transport Workers Union of Australia, representing the employees of Cleanaway. The union sought to establish a new enterprise agreement to replace the existing one which was set to expire.

The legal issues that the Commission had to address included whether the agreement met the requirements of the Fair Work Act 2009, whether it was in the best interests of the employees, and whether it provided a fair and reasonable outcome for both parties. Specifically, the union argued that the agreement contained provisions that were favourable to the employer and did not adequately protect the rights and interests of the employees. Cleanaway, on the other hand, argued that the agreement was a fair and reasonable one that provided benefits to both parties.

The Commission found that the agreement met the requirements of the Fair Work Act and was in the best interests of the employees. The Commission noted that the agreement contained provisions that provided for a reasonable level of flexibility for the employer, while also providing for protections for the employees. The Commission also noted that the agreement provided for a fair and reasonable outcome for both parties, and that it was better than the existing agreement that was set to expire. The Commission approved the agreement and ordered that it be registered with the Fair Work Commission.

This decision highlights the importance of negotiating fair and reasonable enterprise agreements that provide protections for both employers and employees. It also highlights the role of the Fair Work Commission in approving enterprise agreements and ensuring that they meet the requirements of the Fair Work Act. The decision provides guidance for employers and unions when negotiating future enterprise agreements, and it sets out the factors that the Commission will consider when deciding whether to approve an enterprise agreement.

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established