Veolia Environmental Services (Australia) Pty. Ltd.
[2023] FWCA 376
•10 FEBRUARY 2023
| [2023] FWCA 376 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Veolia Environmental Services (Australia) Pty. Ltd.
(AG2023/15)
Veolia Environmental Services Australia Industrial Services [Tasmania] Enterprise Agreement 2023-2026
| Waste management industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 10 FEBRUARY 2023 |
Application for approval of the Veolia Environmental Services Australia Industrial Services [Tasmania] Enterprise Agreement 2023-2026
Veolia Environmental Services (Australia) Pty. Ltd. (the Applicant) has made an application for the approval of an enterprise agreement known as the Veolia Environmental Services Australia Industrial Services [Tasmania] Enterprise Agreement 2023-2026 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The notice of employee representational rights (NERR) provided to employees stated that the title of the Agreement was the Veolia Environmental Service (Australia) Pty Ltd Industrial Services (Tasmania) Enterprise Agreement 2021-2024. The Applicant submitted that with the span of time taken to negotiate and make the Agreement, the title of the Agreement was changed to the Veolia Environmental Services Australia Industrial Services (Tasmania) 2023-2026, the name of the Agreement that was made.
I am satisfied, having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd,[1] that if the abovementioned circumstance constituted an error, it was a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that the employees were not likely to have been disadvantaged by the error.
Clause 6.1.2 of the Agreement provides that annual leave is cumulative and will accrue on a pro-rata basis. This is inconsistent with s 87(2) of the Act where annual leave accrues progressively. Clause 3.9.5 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This may restrict an employee’s entitlement to payment of entitlements owing upon termination in accordance with the National Employment Standards (NES). Clause 3.14 of the Agreement covers abandonment of employment but does not appear to provide for notice of termination. This may be inconsistent with s 117 of the Act.
Although it appears that these clauses, in part, are contrary to various provisions of the NES in Part 2-2 of the Act, I am satisfied that the issues are resolved by the written undertakings proffered by the Applicant. 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.
In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
The Transport Workers’ Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.
The Agreement was approved on 10 February 2023 and, in accordance with s 54, will operate from 17 February 2023. The nominal expiry date of the Agreement is 10 February 2026.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318.
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