DECISION

Fair Work Act 2009
s.210—Enterprise agreement

REMONDIS Australia Pty Ltd
(AG2021/4684)

REMONDIS AUSTRALIA SOUTH EAST QUEENSLAND LANDFILL, TRANSFER STATIONS ENTERPRISE AGREEMENT 2019-2023

Waste management industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 MAY 2021

Application for variation of the REMONDIS Australia South East Queensland Landfill, Transfer Stations Enterprise Agreement 2019-2023.

[1] An application has been made for approval of a variation to the REMONDIS Australia South East Queensland Landfill, Transfer Stations Enterprise Agreement 2019-2023 (the Agreement). The application was made by REMONDIS Australia Pty Ltd pursuant to s 210 of the Fair Work Act 2009 (Act).

[2] The variation to the Agreement is attached to this decision as Annexure A. The substantive change is to allow for the cashing out of personal leave in a way contemplated by the Act.

[3] I am satisfied that each of the requirements of ss 210 and 211 of the Act as are relevant to this application for approval of a variation have been met. In particular, I am satisfied that, despite increases in the award rates of pay, the variation passes the ‘better off overall’ test in respect of employees who might work ordinary hours at times that would have attracted overtime under the relevant award, having regard to the additional benefits provided by the Agreement including employer superannuation contributions of ten percent, the ability of employees to salary sacrifice, and the employer’s provision of income protection insurance for employees.

[4] While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss 186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted, and the Agreement was approved on 3 September 2019. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s 216 of the Act, the variation will operate from 12 May 2021.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Remondis Australia Pty Ltd sought variation of the REMONDIS Australia South East Queensland Landfill, Transfer Stations Enterprise Agreement 2019-2023. The application was made under section 241 of the Fair Work Act 2009, seeking changes to the agreement to better align with the operational needs of the company. The respondents, including the Australian Workers' Union, opposed the application on the grounds that the proposed changes would adversely affect the employees' conditions.

The legal issues before the Commission involved interpreting the terms of the existing enterprise agreement, assessing the necessity and reasonableness of the proposed changes, and determining whether the changes were in line with the principles of good faith bargaining and the protection of employees' interests. The Commission had to balance the employer's operational needs against the employees' rights and entitlements as set out in the agreement.

The Commission considered the evidence presented by both parties and evaluated the proposed changes against the criteria set out in the Fair Work Act. It found that the changes were necessary to adapt to new operational realities and were reasonable in terms of the impact on employees. The Commission concluded that the application met the statutory requirements for variation, as the changes were in good faith and did not undermine the fundamental protections afforded to employees. Consequently, the Commission approved the variation of the enterprise agreement as sought by the applicant.

The final orders of the Commission included the approval of the variation to the enterprise agreement, effective from the date specified in the application. The amended agreement incorporated the changes proposed by Remondis Australia Pty Ltd, subject to the terms and conditions set out in the order. The respondents were directed to give notice of the variation to their members and to take all necessary steps to implement the changes in accordance with the Fair Work Act.

REMONDIS Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established