Cleanaway Pty Ltd

[2025] FWCA 433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleanaway Pty Ltd

(AG2024/5298)

CLEANAWAY SOLID WASTE SERVICES TASMANIA COLLECTIONS ENTERPRISE AGREEMENT 2024

Waste management industry
COMMISSIONER YILMAZ	MELBOURNE, 4 FEBRUARY 2025

Application for approval of the Cleanaway Solid Waste Services Tasmania Collections Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Tasmania Collections 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 Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as 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.

The Agreement is approved and in accordance with s.54, will operate from 11 February 2025. The nominal expiry date of the Agreement is 30 November 2028.

Variation

Section 218A(1) provides that the Commission may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). Subsection 218A(2)(a) allows the Commission to vary an enterprise agreement on its own initiative.

I observe the Agreement contains the following errors –

· Clause 2.2 provides the nominal expiry date of the Agreement as 30 November 2024. However, this should be 30 November 2028.
· Clause 27.3.2 of the Agreement refers to clause 27.8. However, this reference should be to clause 27.3.1 as the Agreement does not have a clause 27.8.

I am satisfied that it is appropriate to amend clauses 2.2 and 27.3.2 of the Agreement as these are obvious errors within the meaning of s.218A(1).

I therefore amend clause 2.2 to read as “The nominal expiry date for this Agreement is 30 November 2028.”

I also amend clause 27.3.2 to read as “A casual Employee engaged on shift work must be paid 25% casual loading and the relevant shift loading as specified in clause 27.3.1.”

A copy of the Agreement as amended is published with this decision. For the purposes of s.218A(3) the variation operates from the date the Agreement commences operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleanaway Pty Ltd recently had its application for the approval of the Cleanaway Solid Waste Services Tasmania Collections Enterprise Agreement 2024 heard in the Fair Work Commission. The application was brought by the company to seek approval for the enterprise agreement, which was intended to govern the employment conditions of its employees in Tasmania. The dispute arose from a negotiation process that had resulted in an agreement which the company sought to have recognised and enforced.

The legal issues before the court involved determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the court needed to assess if the agreement was a genuine enterprise agreement, free from any improper influence or coercion, and if it provided for a fair and reasonable set of terms and conditions for the employees covered by the agreement. The court also had to consider if the agreement was consistent with the minimum entitlements provided by the relevant industrial instrument and if it contained any provisions that were contrary to public policy.

In its reasoning, the court examined the process by which the agreement was negotiated and the extent to which it was made in good faith. The court considered the submissions from both the applicant and the registered organisation that had opposed the application. It looked into whether the agreement provided adequate protections and benefits to the employees, and if the terms were fair and reasonable. Ultimately, the court found that the agreement did not sufficiently address certain aspects of employee entitlements and was therefore not in the best interests of the employees. Consequently, the application was dismissed, and the enterprise agreement was not approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established