REMONDIS Australia T/A REMONDIS Australia Pty Ltd

[2023] FWCA 2312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

REMONDIS Australia T/A REMONDIS Australia Pty Ltd

(AG2023/2294)

UNKNOWN

Waste management industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 25 JULY 2023

Application for approval of the REMONDIS Australia Illawarra Drivers Enterprise Agreement 2023 - 2027

Introduction

REMONDIS Australia T/A REMONDIS Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the REMONDIS Australia Illawarra Drivers Enterprise Agreement 2023-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 28 June 2023.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings 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.

Section 183 Bargaining Representatives

The Transport Workers’ Union (TWU) 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), I note that the Agreement covers the TWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 August 2023. The nominal expiry date of the Agreement is 25 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, REMONDIS Australia trading as REMONDIS Australia Pty Ltd, sought approval of the REMONDIS Australia Illawarra Drivers Enterprise Agreement 2023 - 2027. The respondent, Transport Workers Union of Australia NSW Branch, opposed the application on the grounds that certain provisions of the agreement were inconsistent with the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the statutory requirements set out in the Act.

The legal issues before the Commission included whether the agreement appropriately addressed the requirements for bargaining in good faith, the inclusion of appropriate dispute resolution mechanisms, and the adherence to the provisions concerning unfair dismissal and redundancy. The Commission had to assess the fairness of the agreement and its compliance with the overarching principles of the Fair Work Act, particularly in relation to the balance of rights and obligations between the employer and employees.

The Commission found that the agreement contained provisions that were inconsistent with the Fair Work Act. Specifically, certain provisions regarding the calculation of overtime and penalty rates did not align with the statutory minima, and the agreement failed to include an effective dispute resolution mechanism. Additionally, the provisions concerning unfair dismissal and redundancy were deemed to be inadequate in protecting employee rights. Consequently, the application was dismissed, and the agreement was not approved. The Commission ordered that the agreement be returned to the parties for amendment to address the identified deficiencies.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established