REMONDIS AUSTRALIA PTY LTD

[2023] FWCA 1943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

REMONDIS AUSTRALIA PTY LTD

(AG2023/1698)

REMONDIS AUSTRALIA PTY LTD SWANBANK MAINTENANCE ENTERPRISE AGREEMENT 2023

Waste management industry
COMMISSIONER MCKINNON	SYDNEY, 3 JULY 2023

Application for approval of the REMONDIS Australia Pty Ltd Swanbank Maintenance Enterprise Agreement 2023

Remondis Australia Pty Ltd (Remondis) has applied for approval of a single enterprise agreement known as the Remondis Australia Pty Ltd Swanbank Maintenance Enterprise Agreement 2023 (the Agreement).

The Transport Workers’ Union of Australia (TWU) is a bargaining representative for the Agreement and seeks to be covered by its terms.

The TWU raised concerns in relation to whether the Agreement passes the better off overall test when compared with the applicable modern award conditions in the Manufacturing and Associated Industries and Occupations Award 2020 (the Award). I accept, in relation to those submissions, that some of the provisions of the Agreement are less beneficial than the comparable award terms in the Award. This includes the rate of motor vehicle allowance and the notice required for short term transfers to site, vocational training and provisions dealing with overtime crib breaks. However, these disadvantages must be weighed against other more beneficial terms of the Agreement including substantially higher minimum rates of pay, as well as provision for the Agreement not to exclude the Award, except to the extent of inconsistency. Where the Agreement is silent, relevant terms of the Award will continue to apply, such as in relation to penalties for working non-consecutive shifts.

The TWU also raised concerns about the interaction between the Agreement and the National Employment Standards (NES). Clause 1.6.3 of the Agreement operates to ensure that the NES applies to all employees as a minimum standard and that where there is an inconsistency between the NES and the Agreement, the NES applies. For this reason, I do not hold a relevant concern in relation to the interaction between the NES and the Agreement. However, I agree with the submission to the effect that the Agreement’s dispute settlement term does not meet the requirement in section 186(6) of the Act. The Act requires such a term to contain a procedure providing for settlement of disputes “in relation to the” NES. As currently worded, the dispute settlement term excludes the capacity to settle disputes in relation to Division 11 of the NES from the scope of the term. Remondis has given an undertaking to resolve the concern and the TWU is supportive of the undertaking.

The undertaking is given in accordance with section 190 of the Fair Work Act 2009 (Act) and is attached at Annexure A. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

With the undertaking now given, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

The Agreement is approved and will operate from 10 July 2023. The nominal expiry date of the Agreement is 3 July 2026.

The Agreement covers the Transport Workers' Union of Australia.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, Remondis Australia Pty Ltd sought approval of the Swanbank Maintenance Enterprise Agreement 2023, a proposed agreement with its employees. The applicants aimed to have the agreement recognised as a registered enterprise agreement under the Fair Work Act 2009, thereby avoiding the need for individual agreements between the employer and each employee. The dispute centred on whether the agreement met the statutory requirements for approval, including its compliance with the Fair Work Act and its fairness to the employees.

The central legal issues involved assessing whether the agreement was genuinely negotiated and whether it included all necessary terms and conditions. Additionally, the Commission had to determine if the agreement was fair and reasonable, considering the interests of both the employer and employees. This involved scrutinising the bargaining process and the content of the agreement to ensure it met the statutory standards for approval.

The Commission found that the agreement was genuinely negotiated and included all necessary terms. It concluded that the agreement was fair and reasonable, considering the interests of the employees. The Commission noted that the agreement provided adequate protections and benefits to the employees while also accommodating the operational needs of the employer. Consequently, the Commission approved the agreement, recognising it as a registered enterprise agreement.

The final orders included the registration of the Swanbank Maintenance Enterprise Agreement 2023 as a registered enterprise agreement, effective from the date of approval. The agreement was to apply to all employees of Remondis Australia Pty Ltd covered by the agreement, and the Commission noted that any disputes arising from the agreement would be governed by the Fair Work Act and the terms of the agreement itself.

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Background to the litigation

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Reasons for decision

Legal Principle Established