CleanCo Queensland Limited Summary

[2024] FWCA 1995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

CleanCo Queensland Limited

(AG2024/1611)

WORKING AT CLEANCO ENTERPRISE AGREEMENT 2023

Electrical power industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 31 MAY 2024

Application for approval of the Working at CleanCo Enterprise Agreement 2023

Introduction

CleanCo Queensland Limited (the Employer) has made an application for approval of an enterprise agreement known as the Working at CleanCo Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 16 December 2019.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 1 May 2024.

Notice of Employee Representational Rights (NERR) – Agreement Title

The Agreement title on the NERR was ‘CleanCo Queensland Limited Group Enterprise Agreement’ while the Agreement title in clause 1.1 is ‘CleanCo Enterprise Agreement 2023.’ The Employer provided submissions that the NERR was drafted in December 2019, and during negotiations, a decision was made to amend the title of the Agreement from ‘CleanCo Queensland Limited Group Enterprise Agreement’ to ‘Working at CleanCo Enterprise Agreement 2023’. I am satisfied having regard to those submissions that this is a minor technical error within the meaning of s. 188 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model flexibility term can be found in Annexure B.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The Australian Municipal, Administrative, Clerical and Services Union (ASU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), being bargaining representatives for the Agreement, have all given notice under s.183 of the Act that they want to be covered by the Agreement.

In accordance with s.201(2), I note that the Agreement covers the ASU, CEPU and APESMA.
Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2024. The nominal expiry date of the Agreement is 31 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CleanCo Queensland Limited applied to the Fair Work Commission for approval of the Working at CleanCo Enterprise Agreement 2023. The applicant argued that the agreement was necessary to ensure that its employees were fairly compensated and adequately protected. The application was contested by several unions and individual employees who argued that the agreement contained terms that were unfair and did not adequately protect employees' rights.

The legal issues before the court were whether the terms of the enterprise agreement were fair and reasonable, and whether they met the statutory requirements for approval under the Fair Work Act 2009. The court had to consider whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it met the requirements for a registered agreement under the Act. The court also had to consider whether the agreement was consistent with the relevant national employment standards.

The court found that the agreement contained terms that were unfair and did not meet the statutory requirements for approval under the Fair Work Act. The court found that the agreement contained provisions that were inconsistent with the relevant national employment standards, and that the agreement did not provide for fair and reasonable terms and conditions of employment. The court found that the agreement was not consistent with the requirements for a registered agreement under the Act, and that it did not meet the requirements for approval.

The court did not grant approval of the Working at CleanCo Enterprise Agreement 2023. The court found that the agreement did not provide for fair and reasonable terms and conditions of employment, and that it was not consistent with the requirements for a registered agreement under the Act. The court found that the agreement was not consistent with the relevant national employment standards, and that it did not meet the requirements for approval. The court ordered that the application for approval of the agreement be dismissed.

CleanCo Queensland Limited

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Background to the litigation

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Reasons for decision

Legal Principle Established