Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

[2023] FWCA 1790

[2023] FWCA 1790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd

(AG2023/1722)

CLEANAWAY INDUSTRIAL SERVICES GOVE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 20 JUNE 2023

Application for approval of the Cleanaway Industrial Services Gove Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Cleanaway Industrial Services Gove Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 June 2023.

1. On 14 June 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. I also sought a copy of the Agreement in markup form as the original Agreement lodged alongside the application contained a number of references to incorrect clauses and duplicate clause numbers.

1. On 20 June 2023, I was provided a copy of the Agreement in markup with the correct numbering and, pursuant to s.586 of the Act, I have corrected the clause numbering errors with the changes shown in the Agreement markup.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Casual Conversion – While the casual conversion clause of the Agreement (Clause 15) is mostly in line with the NES, it appears to add an additional requirement to convert to full or part-time employment:

Clause 15.4 states: “only a Casual Employee that is employed on a regular and systematic basis for an average of 38 hours in a week in the relevant period may seek to be converted to a full-time position. All other Casual Employees to which this clause applies may only seek to be converted to a part-time position.” This appears to make the process more onerous than under s.66B of the Act.

1. Clause 5 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 13 June 2023. The undertaking deals with the following topics:

·   Clause 9 of the Agreement (Consultation Regarding Major Workplace Change) will also apply if the Company proposes to introduce a change to the roster or ordinary hours of work for the Employee(s).

·   Clause 26.3.1 of the Agreement will be replaced with the following:

26.3.1 An Employee who is entitled to be paid overtime rates shall be paid:

Work Pattern	150% of the base rate of pay	200% of the base rate of pay	250% of the base rate of pay
Monday to midnight Saturday	First 2 hours	After 2 hours	-
Between midnight Saturday and midnight Sunday	-	All hours	-
Public holiday - minimum 3 hours pay	-	-	All hours

·   Despite Clause 23.4.3 of the Agreement, Employees who undertake training outside their ordinary rostered hours will be paid in accordance with the overtime clause in the Agreement.

·   Despite Clause 40 of the Agreement, an Employee is entitled to 10 days of paid Family and Domestic Violence leave per calendar year.

1. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. 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.

1. The Australian Workers’ Union, 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.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

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