MG & CG Atkins Pty Ltd T/A Cardinia Waste & Recyclers

[2015] FWCA 2608

[2015] FWCA 2608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MG & CG Atkins Pty Ltd T/A Cardinia Waste & Recyclers
(AG2015/1849)

CARDINIA WASTE & RECYCLERS ENTERPRISE AGREEMENT 2015

Waste management industry
COMMISSIONER ROBERTS	SYDNEY, 15 APRIL 2015

Application for approval of the Cardinia Waste & Recyclers Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Cardinia Waste & Recyclers Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by MG & CG Atkins Pty Ltd T/A Cardinia Waste & Recyclers (Cardinia or the Company). The agreement is a single-enterprise agreement.

[2] A form F18 was subsequently lodged by the Transport Workers’ Union of Australia Victoria/Tasmanian Branch (TWU) setting out a number of alleged deficiencies in the Agreement and stating that it did not support approval and, in the event that the Agreement was approved, did not wish to be covered by it.

[3] A Better Off Overall Test (BOOT) analysis produced by the Commission showing some deficiencies in the Agreement was supplied to the parties for their comment. Subsequently there was extensive correspondence between the Commission and the parties and between the parties themselves exploring what undertakings could be offered by the Applicant employer to cure any deficiencies in the Agreement which would affect the BOOT. That correspondence produced some concessions by Cardinia but did not completely satisfy the concerns expressed by the TWU. Accordingly, the matter was set down for hearing on 10 April 2015 in Sydney. Both parties appeared at the hearing via video link and the TWU filed prior written submissions. Cardinia was represented by Mr C Ni and TWU was represented by Mr H Smith and Mr M Wirrick.

[4] Negotiations between the parties were also conducted during breaks in the hearing and those discussions produced a consolidated list of undertakings from Cardinia which were presented orally during proceedings and supplied in writing after proceedings had concluded. The undertakings offered by Cardinia were not totally acceptable to the TWU which maintains that the Agreement does not meet the BOOT. The TWU also repeated its decision not to seek to be covered by any agreement that might be made.

[5] I have carefully considered the arguments put forward by Cardinia and the TWU and am satisfied that the Agreement meets the BOOT subject to the Company’s undertakings. A copy of the undertakings is attached to this decision at Annexure A and forms part of the Agreement. In this context I note the Full Bench Decision in CFMEU v B J Jarrad Pty Ltd 1, which says:

“In conducting the BOOT, the Commission is required to form an overall impression of an enterprise agreement in which ‘no one [consideration] and no combination of [consideration] is necessarily determinative of the result’ and the decision-maker is ‘allowed some latitude as to the choice of the decision to be made’. 2 A decision with respect to the BOOT is therefore a discretionary decision.”

[6] I am now satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[7] As noted above, the TWU does not wish to be covered by the Agreement.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 April 2015. The nominal expiry date of the Agreement is 14 April 2019.

COMMISSIONER

Annexure A

 1   [2013] FWCFB 8740.

 2 (2000) 203 CLR 194 at 205 [19].

Printed by authority of the Commonwealth Government Printer

<Price code G, AE413533  PR563127>