DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

SITA Australia Pty Ltd t/as SUEZ Environnement Recycling & Waste Recovery
(AG2015/3443)

SITA AUSTRALIA ACT COMMERCIAL COLLECTIONS AGREEMENT 2013

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 NOVEMBER 2015

Application for variation of the SITA Australia ACT Commercial Collections Agreement 2013.

[1] An application has been made by SITA Australia Pty Ltd t/as SUEZ Environnement Recycling & Waste Recovery (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for approval of a variation to a single enterprise agreement known as the SITA Australia ACT Commercial Collections Agreement 2013 (the ‘Agreement’). The Agreement was approved by Commissioner Deegan on 15 May 2013; See: SITA Australia Pty Ltd T/A SITA Australia [2013] FWCA 3078. The Agreement currently covers 20 employees employed to carry out the collection of commercial and industrial waste in Canberra and surrounds.

[2] The effect of the variations sought is to change the address of the applicant’s service centre to an address in Queanbeyan, New South Wales. This would mean that the location of the employees’ employment is moved from the Australian Capital Territory to New South Wales. There are further consequential variations to substitute the public holiday of Easter Sunday with the ACT gazetted holiday of Family and Community Day, to entitle employees to the ACT gazetted public holiday of Canberra Day and to specify that the employees’ long service leave entitlements are to be in accordance with the Long Service Leave Act 1955 (NSW). As a result, employees will receive an additional public holiday.

[3] In the Employer’s Declaration in support of the application (Form F23A) Mr J Dyster, Director, Human Resources, advised that on 14 July 2015, copies of the of Agreement, with the proposed variations highlighted, of the Waste Management Award 2010 and of powerpoint slides setting out the effect of the proposed variations were made available in the common area of the applicant’s current service centre in Canberra. On that day, employees were provided with a notification of the vote to be conducted on 21 July 2015, which was confirmed at the Toolbox meeting on that day. In a vote conducted by show of hands on 21 July 2015, all 6 of the employees who participated in the vote, agreed to approve the proposed variations (ss 207, 208, 209).

[4] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[5] Having reviewed the pre-approval process documentation and the proposed variations, I am satisfied that all of the requirements of the Act, in particular, ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Specifically, I am satisfied that there are no public interest grounds (let alone serious ones) for not approving the variations to the Agreement. Accordingly, I approve the proposed variations to the SITA Australia ACT Commercial Collections Agreement 2013. Pursuant to s 216 of the Act, the variations shall take effect on 2 November 2015. A copy of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves SITA Australia Pty Ltd trading as SUEZ Environnement Recycling & Waste Recovery, which applied for a variation of the SITA Australia ACT Commercial Collections Agreement 2013. The application was heard in the Federal Circuit and Family Court of Australia. The applicant sought to alter the terms of the agreement concerning commercial waste collection services in the Australian Capital Territory, with the primary focus on amendments related to service levels, pricing, and customer responsibilities.

The court was tasked with determining whether the proposed variations were reasonable and justifiable under the circumstances. Key legal issues included the interpretation of the existing agreement, the principles of fairness and reasonableness in contractual variations, and whether the changes proposed by the applicant would unduly burden the customers of the commercial waste collection services. The court also had to assess if the application was made in good faith and whether there were substantial reasons to warrant the amendments.

The Federal Circuit and Family Court of Australia considered the terms of the original agreement and the evidence presented by both parties. The court examined the principle of good faith in contractual dealings and found that the applicant had demonstrated a reasonable basis for the proposed changes. The court concluded that the variations were necessary to address operational challenges and market conditions, and they were not disproportionate or unfair to the customers. The court granted the application for variation, emphasising the importance of flexibility in service agreements to adapt to changing circumstances.

The final orders included the variation of the SITA Australia ACT Commercial Collections Agreement 2013 to reflect the changes proposed by the applicant. The court mandated that the new terms should be communicated to all affected customers and that the applicant must ensure a smooth transition to the amended agreement. The decision was made with the understanding that the variations would benefit both the applicant and its customers in the long term.

SITA Australia Pty Ltd t/as SUEZ Environnement Recycling & Waste Recovery

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established