SITA Australia Pty Ltd t/as SITA Australia Recycling and Recovery Australia

[2015] FWCA 8665

[2015] FWCA 8665

FAIR WORK COMMISSION

DECISION

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

SITA Australia Pty Ltd t/as SITA Australia Recycling and Recovery Australia
(AG2015/6323)

SUEZ SHOALHAVEN RESIDENTIAL ENTERPRISE AGREEMENT 2015

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 DECEMBER 2015

Application for approval of the SUEZ Shoalhaven Residential Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by SITA Australia Pty Ltd t/as SITA Australia Recycling and Recovery Australia (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the SUEZ Shoalhaven Residential Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 15 employees who are engaged in duties connected to the kerbside collection of waste and recycling for a contract between the applicant and Shoalhaven City Council in Shoalhaven, New South Wales. 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 7 October 2014 and voting for the Agreement’s approval took place on 17 November 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 November 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Dyster, Director Human Resources, identified the Waste Management Award 2010 [MA000043] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Dystersaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including a casual loading of 20% and an overtime rate of time and a quarter. However, the Agreement provides for higher rates of pay, a minimum engagement of four hours when recalled to work overtime and enhanced redundancy entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at Schedule 1 and Schedule 2 respectively, and a disputes resolution procedure at Schedule 3 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 10 December 2015, Mr M Ratcliffe and Ms A Ribalko appeared for the applicant and Mr L Lawler for the Union. Mr Ratcliffe 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. He explained that rates of pay are to be increased by 2.5% or in accordance with CPI, whichever is the greater, on 1 July 2016 and 1 July 2017. Mr Lawler supported the submissions of Mr Ratcliffe. 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.

[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 SUEZ Shoalhaven Residential Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 17 December 2015 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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