Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

[2024] FWCA 3237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

(AG2024/3106)

CLEANAWAY SOLID WASTE SERVICES TULLAMARINE C&I DRIVERS ENTERPRISE AGREEMENT 2024

Waste management industry
COMMISSIONER YILMAZ	MELBOURNE, 11 SEPTEMBER 2024

Application for approval of the Cleanaway Solid Waste Services Tullamarine C&I Drivers Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Tullamarine C&I Drivers Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd. The Agreement is a single enterprise agreement.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. An older version of the NERR was provided. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as they are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clause 36.4 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 18 September 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd recently sought approval of the Cleanaway Solid Waste Services Tullamarine C&I Drivers Enterprise Agreement 2024 from the Fair Work Commission. The dispute centred on the terms and conditions outlined within the enterprise agreement, specifically whether the agreement complied with the provisions of the Fair Work Act 2009. The Fair Work Commission was tasked with assessing whether the agreement met the necessary standards for approval, including the fair and equitable treatment of employees and compliance with the minimum terms and conditions prescribed by the Fair Work Act.

The legal issues before the Commission included whether the proposed enterprise agreement adequately addressed the rights and entitlements of the drivers, and whether the agreement complied with the procedural requirements for approval set out in the Fair Work Act. Additionally, the Commission had to consider whether the agreement provided for a fair and efficient resolution of workplace issues and adequately safeguarded the interests of both the employer and the employees. The court had to ensure that the agreement was not only procedurally sound but also substantively fair and equitable.

In delivering its decision, the Fair Work Commission carefully examined the provisions of the enterprise agreement against the benchmarks established by the Fair Work Act. The Commission considered the fairness and reasonableness of the terms, the consultation process undertaken by the parties, and whether the agreement provided for a fair and efficient resolution of workplace issues. After thorough analysis, the Commission concluded that the Cleanaway Solid Waste Services Tullamarine C&I Drivers Enterprise Agreement 2024 met the necessary criteria for approval. The Commission found that the agreement was fair and equitable, and that it complied with all procedural and substantive requirements of the Fair Work Act.

The Commission approved the Cleanaway Solid Waste Services Tullamarine C&I Drivers Enterprise Agreement 2024, effective from the date of the decision. The approval signifies the formal recognition of the agreement as a legally binding document governing the employment terms and conditions of the drivers employed by Cleanaway Operations. This decision provides clarity and certainty for both the employer and the employees, ensuring that the agreement will operate within the framework of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established