Re.Cycle Operations (Canberra) Pty Ltd

[2019] FWCA 8555

[2019] FWCA 8555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Re.Cycle Operations (Canberra) Pty Ltd
(AG2019/3719)

RE.CYCLE OPERATIONS (CANBERRA) - HUME MRF ENTERPRISE AGREEMENT 2019

Waste management industry
DEPUTY PRESIDENT BULL	SYDNEY, 18 DECEMBER 2019

Application for approval of the Re.Cycle Operations (Canberra) - Hume MRF Enterprise Agreement 2019.

[1] An application (Form F16) has been filed by Re.Cycle Operations (Canberra) Pty Ltd(the applicant), for the approval of an enterprise agreement known as the Re.Cycle Operations (Canberra) - Hume MRF Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] Following issues being raised with the applicant by the Commission, the applicant provided undertakings regarding:

•  Minimum engagement for employees required to work on a Public Holiday;

•  Pay rates for employees directed or required to work in a higher classification (that is not part of training);

•  Amendment to clause 28.6 of the Agreement regarding maximum deductions that the employer can make from an employee’s final pay;

•  Entitlement to 1 day off per week of notice for the purpose of attending job interviews where an employee is made redundant and is required to work out their notice period; and

•  Notice requirements where an employee is being transferred to shift work.

[3] The undertakings are attached at the end of the Agreement. I am satisfied pursuant to s.190(3) of the Act 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. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.

[4] The Agreement contains various benefits and deficiencies compared to the Waste Management Award 2010 (the Award) including higher base rates, overtime and public holiday rates of pay under the Agreement than the Award. The terms of the Agreement which are not more beneficial than the Award include loss of overtime payment for part-time employees who are rostered to start or finish outside of their agreed hours and certain allowances including the first aid allowance and the overtime meal allowance.

[5] The employer provided submissions addressing the comparison of the more beneficial and less beneficial terms of the Agreement compared to the Award and submitted that the Commission can be satisfied that the Agreement passes the Better Off Overall Test (BOOT).

[6] In considering whether the Agreement passes the BOOT, an overall assessment is required to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the Agreement. 1 I am satisfied pursuant to s.193 of the Act that the Agreement passes the BOOT.

[7] Subject to the undertakings and the considerations 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. The employee bargaining representative’s views were sought regarding the undertakings provided by the applicant.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 3 years from the date of approval of the Agreement.

DEPUTY PRESIDENT

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 1   Armacell [2010] FWAFB 9985 at 41.