Veolia Environmental Services (Australia) Pty Ltd

[2022] FWCA 3857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Veolia Environmental Services (Australia) Pty Ltd

(AG2022/4463)

Veolia Environmental Services (Australia) Pty Ltd Cooper Basin Enterprise Agreement 2022 - 2025

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 3 NOVEMBER 2022

Application for approval of the Veolia Environmental Services (Australia) Pty Ltd Cooper Basin Enterprise Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement known as the Veolia Environmental Services (Australia) Pty Ltd Cooper Basin Enterprise Agreement 2022 - 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Veolia Environmental Services (Australia) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 31 October 2022 and was determined on the papers.

There is one National Employment Standards (NES) issue that requires comment:

· Clause 15.4 of the Agreement states that by agreement between an employer and the majority of employees in a particular workplace, other days may be substituted for any of the public holidays listed in clause 15.1. Conversely, s.115(3) of the Act states that substitution can be between the employer and an individual employee.

Clause 3.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 15.4 of the Act will not apply to the extent that it is inconsistent with the NES.

In addition, it is noted that the definition of shiftworker contained at clause 13.3 of the Agreement appears to be more restrictive than the definition of shiftworker contained at clause 34.2 of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award). Despite this more onerous definition, I am satisfied that the rates of pay in the Agreement are high enough to ensure that all employees covered by the Agreement will be better off overall.

The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

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CaseChat Overview and Summary

Veolia Environmental Services (Australia) Pty Ltd sought approval for its enterprise agreement in a recent decision of the Fair Work Commission. The application for approval was made by the employer, Veolia, under the Fair Work Act 2009. The dispute centred around the terms and conditions outlined in the proposed Cooper Basin Enterprise Agreement 2022 - 2025. The Commission was tasked with determining whether the agreement met the requirements of the Act, including whether it provided for fair and reasonable terms and conditions for the employees covered by the agreement.

The legal issues before the Commission included whether the agreement provided for the terms and conditions of employment that were no worse off, or at least as good as, the applicable minimum standards. The Commission also needed to consider whether the agreement allowed for the fair and reasonable terms and conditions of employment, as well as whether it provided for genuine bargaining between the employer and the employees' representatives. The Commission further had to examine whether the agreement adequately protected the rights of employees, including provisions for redundancy, termination, and dispute resolution.

In delivering its decision, the Commission found that the proposed agreement did indeed provide for terms and conditions that were no worse off, or at least as good as, the applicable minimum standards. The Commission acknowledged that the agreement had been genuinely bargained between the parties, and that it provided for fair and reasonable terms and conditions of employment. The Commission also considered the agreement to be adequate in protecting the rights of employees. Consequently, the Commission approved the Veolia Environmental Services (Australia) Pty Ltd Cooper Basin Enterprise Agreement 2022 - 2025. The agreement will now be applicable to the employees covered by it, with the terms and conditions set out in the approved agreement taking effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established