SITA Australia Pty Ltd

[2013] FWCA 3091

[2013] FWCA 3091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

SITA Australia Pty Ltd
(AG2013/1112)

SITA AUSTRALIA PENRITH CITY COUNCIL AGREEMENT 2013

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 MAY 2013

Application for approval of the SITA Australia Penrith City Council Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by SITA Australia Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the SITA Australia Penrith City Council Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union - NSW Branch (the ‘Union’). The Agreement is to cover 21 employees who are engaged at the applicant’s Service Centre in Penrith, New South Wales who perform work in respect to the Penrith City Council Domestic Waste Contract. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 11 January 2013, and voting for the Agreement’s approval took place on 24 April 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process that proceeded by way of a show of hands at a meeting notified to employees eight days previously, all 17 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Dyster, General Manager - Human Resources, identified the Waste Management Award 2010 [MA000043] and the Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001 [AP812785] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Dyster said that the Agreement provides for a number of terms and conditions that are in excess of, or are more beneficial than, the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, casual conversion after a period of six months and a performance bonus of up to $1,200 per annum. It was also said that another benefit included the ability to cash out annual leave. Rates of pay are to be adjusted annually either by 2.5% or in accordance with CPI, whichever is the greater. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at schedule 1 and clause 23 respectively, and a disputes resolution procedure at clause 43provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 16 May 2013, Mr J Dyster and Mr M Ratcliffe appeared for the applicant and Mr T Warnes with Ms H Courlas for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Dyster outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The Agreement contains one classification of a single person ‘grab and lifting’ vehicle driver. He said that the pay increases under the Agreement are already being paid from 24 April 2013, the date on which the Agreement was approved by the employees. Mr Warnes supported the submissions of Mr Dyster.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the SITA Australia Penrith City Council Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 23 May 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE401301  PR536968>