Recycling Industries Pty Ltd Trading AS Alex Fraser

[2025] FWCA 1879

[2025] FWCA 1879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Recycling Industries Pty Ltd Trading AS Alex Fraser

(AG2025/1461)

RECYCLING INDUSTRIES AGREEMENT 2025-2028

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 5 JUNE 2025

Application for approval of the RECYCLING INDUSTRIES AGREEMENT 2025 - 2028

1. An application has been made for approval of an enterprise agreement known as the Recycling Industries Agreement 2025-2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Recycling Industries Pty Ltd trading as Alex Fraser (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 May 2025.

1. The notification time for the Agreement under s.173(2) was 18 November 2024 and the Agreement was made on 8 May 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]

1. On 29 May 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is a discrepancy between the agreement title in the Notice of Employee Representational Rights (NERR) and the Agreement, I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

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

·   Personal leave – notification: Clause 8.1(b) of the Agreement provides that before taking paid personal/carer’s leave, an employee must give at least 1 hours’ notice before their next rostered starting time. This appears to be inconsistent with s. 107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as reasonably practicable (which may be after the leave has started). 

1. Clause 1.10 of the Agreement acts as an effective NES precedence clause, in that it states that this Agreement will not be applied in a manner that is inconsistent with the 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 they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 2 June 2025, and a copy is attached in Annexure A. 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 representative(s) did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is 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, 190, 193 and 193A 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 29 February 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

<AE529254  PR787948>