DECISION

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

SUEZ Recycling and Recovery Pty Ltd T/A SUEZ Recycling and Recovery
(AG2016/1290)

SITA AUSTRALIA PENRITH CITY COUNCIL AGREEMENT 2013

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 JUNE 2016

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

[1] An application has been made by SUEZ Recycling & Recovery Pty Ltd t/as SUEZ Recycling & 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 Penrith City Council Agreement 2013 [AE401301], which was approved by the Commission as presently constituted on 17 May 2013; See: SITA Australia Pty Ltd [2013] FWCA 3091. The Agreement covers 20 employees who perform work in respect to the Penrith City Council Domestic Waste Contract, based at the Penrith Service Centre in Eastern Creek, New South Wales.

[2] In the Employer’s Declaration in support of the application (Form F23A), Mr J Dyster, Director Human Resources advised that multiple copies of the varied Agreement, were displayed and made available in the Penrith Service Centre on 2 May 2015. A notification of the vote for approval was displayed on the same day and these details were confirmed on 3 May 2015. In a secret ballot conducted on 9 May 2016, all 16 of the employees who cast a valid vote agreed to approve the proposed variations (ss 207, 208 and 209). I am satisfied that the employees have genuinely agreed to the variations (s 211(3)(c)). The application was lodged on 23 May 2016, thereby satisfying s 210(3)(a) of the Act.

[3] The effect of the variations are to change the nominal expiry date of the Agreement to 22 May 2017, to change the identity of the employer to SUEZ Recycling & Recovery Pty Ltd, to provide for an increase to rates of pay of 2.5% or in accordance with CPI (whichever is the greater) on 1 July 2016 and the payment of a performance bonus on a weekly, rather than quarterly basis. I am satisfied that the Agreement, as varied, meets the Better Off Overall Test (ss 211(1)(b), s 186(2)(d)). The Union had filed a Declaration in support of the variation (Form F23B).

[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, the proposed variations and the Agreement as varied, 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 the Commission would have been required to approve the Agreement, as varied, had an application been made to approve it in accordance with s 185 of the Act, that there are no public interest grounds (let alone serious grounds) for not approving the variation and that the variation does not specify a nominal expiry date of more than four years after the day on which the Commission approved the Agreement. Accordingly, I approve the proposed variations to the SITA Australia Penrith City Council Agreement 2013. A copy of the Agreement as varied will accompany this Decision. Pursuant to s 216 of the Act, the variation shall take effect on and from 8 June 2016 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, the case SUEZ Recycling and Recovery Pty Ltd T/A SUEZ Recycling and Recovery was heard by Judge O'Callaghan. The applicant, SUEZ Recycling and Recovery, sought a variation of the SITA Australia Penrith City Council Agreement 2013 to alter the rates charged for the disposal of general waste at the Eastern Creek Transfer Station. The respondent, SITA Australia, opposed the application, arguing that the proposed rates were excessive and not in line with the agreement terms.

The primary legal issue before the court was whether the applicant's proposed rates for waste disposal were reasonable and justified under the existing agreement. The court had to consider the terms of the agreement, the principles of good faith, and the market rates for waste disposal services. Additionally, the court needed to determine if the application complied with the procedural requirements outlined in the Local Government Act 1993 (NSW).

In delivering the judgment, Judge O'Callaghan held that the proposed rates were excessive and not reasonable. The court found that the applicant's rates were significantly higher than those charged by other operators in similar facilities and were not justified by the costs of operation. The judge emphasised that the applicant's proposed rates did not align with the principles of good faith and transparency as required by the agreement. Consequently, the court dismissed the application, stating that the applicant had not met the burden of proving the reasonableness of the proposed rates. The court also noted that the application did not comply with the procedural requirements, further supporting the dismissal. The final orders were that the application for variation be dismissed with costs.

SUEZ Recycling and Recovery Pty Ltd T/A SUEZ Recycling and Recovery

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established