REMONDIS Australia Pty Ltd

[2020] FWCA 3823

[2020] FWCA 3823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

REMONDIS Australia Pty Ltd
(AG2020/1507)

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

Waste management industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 JULY 2020

Application for approval of a variation to an enterprise agreement.

[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 (company) pursuant to s 210 of the Fair Work Act 2009 (the Act).

[2] The variation amends the hourly wage rates and night shift loading for employees classified at levels 1 and 2 under the Agreement. It reduces the current hourly wage rates for such employees from $26.47 (level 1) and $29.40 (level 2) to $24.16 and $24.60 respectively. It also increases the night shift loading for such employeesfrom 15% to 30%. The company does not currently employ anyone in these classifications. The variation does not amend the wage rates or night shift loadings for other classifications covered by the Agreement. The variation makes certain other minor amendments, including to the title page of the Agreement, and incorporates into the body of the Agreement undertakings given to the Commission prior to the approval of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The application was accompanied by a signed copy of the Agreement as proposed to be varied but not by a signed copy of the variation, as required by s 210(2)(a). The company subsequently provided a signed copy of the variation and I consider that the requirement of s 210(2)(a) has now been met. To the extent that there might be any argument that, in order to comply with s 210(2)(a), the variation document had to accompany the application at the time it was lodged, this would be an irregularity in the form or manner in which an application was made, and I waive the irregularity under s 586(b).

[4] Associated with this procedural question is a substantive matter concerning the documents that must be provided to employees or made available during the ‘access period’ prior to the vote on the variation. For the reasons I set in out in The Royal Melbourne Golf Club Inc [2020] FWCA 2284, it appears that the Act requires that employees who are to vote on a proposed variation to an enterprise agreement must be provided with a copy of, or access to, the variation. It appears that this did not occur in the present case.

[5] Nevertheless, I consider this to be a ‘minor procedural or technical error’ for the purpose of s 188(2) (which is relevant to variation applications because of s 211(3)(c)). The variations brought about only two substantive changes to the Agreement, which were clearly highlighted and explained to employees. This is not a case where the proposed variations were detailed or technical. They did not need to be separately documented in order to be clearly understood.

[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 operates from 22 July 2020.

DEPUTY PRESIDENT

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