Veolia Environmental Services (Australia) Pty Ltd
[2017] FWCA 3165
•9 JUNE 2017
| [2017] FWCA 3165 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
Veolia Environmental Services (Australia) Pty Ltd
(AG2017/1713)
Veolia Environmental Services (Australia) Pty Ltd SA & NT Refuse Agreement 2015-2018
| Waste management industry | |
| COMMISSIONER HAMPTON | ADELAIDE, 9 JUNE 2017 |
Application for variation of the Veolia Environmental Services (Australia) Pty Ltd SA & NT Refuse Agreement 2015-2018.
An application has been made for approval of a variation to an enterprise agreement known as the Veolia Environmental Services (Australia) Pty Ltd SA & NT Refuse Agreement 2015-2018 (the Agreement). The Agreement is a single enterprise agreement. This application was made by the employer, Veolia Environmental Services (Australia) Pty Ltd pursuant to s.210 of the Fair Work Act 2009 (the Act).
The variation to the Agreement concerns a number of provisions including arrangements in relation to labour hire companies (clause 4.9), certain arrangements for casual employees (clause 10.4), Consultative Committee (Clause 39), an element of the Dispute Resolution Procedure (Clause 33) and Union Recognition and Delegates Rights (Clause 42). It is apparent from the material before the Commission that the variation is designed to make the Agreement compliant with the Commonwealth Code for the Tendering and Performance of Building Work 2016 (the Code).[1]
The Transport Workers’ Union of Australia (TWU) is covered by the Agreement and opposed the application. It did so on the basis that the variations represented disadvantages to the employees when compared to the existing Agreement and that it was unfair for the current instrument to be varied in that manner during its life. Subject to one caveat, the TWU did however accept that the relevant approval requirements for a variation set out in the Act had been met. This concession included the procedural steps leading to the genuine agreement of the majority of the employees concerned. The caveat went to the Better Off Overall Test (BOOT) established by s.193 of the Act where the TWU did not express a view about satisfaction with that requirement.
The relevant approval requirements are established by s.211 of the Act and related provisions.
In general terms, and without being definitive, under s.211 of the Act, the Commission is required to approve a variation to an enterprise agreement where:
· the application is made in accordance with the requirements of the Act and the Fair Work Regulations 2009;
· the agreement to vary the enterprise agreement has been genuinely made between the employer and a majority of the relevant group of employees in the same manner as required to make an enterprise agreement that is approvable under s.186 of the Act, including ss.180, 186 and 188 as modified (these also include the provisions of Subdivision E, dealing with approval requirements relating to particular employees);
· the enterprise agreement as modified by the proposed variation is such that it would meet the relevant approval requirements of s.186 of the Act (with appropriate modifications) including the BOOT of s.193 of the Act and compliance with the National Employment Standards;
· the group of employees covered by the enterprise agreement is fairly chosen, the agreement as modified does not contain any unlawful terms, the agreement includes a term that provides a procedure for settling disputes and meets other form and content requirements; and
· the agreement as varied does not specify a nominal expiry date of more than four years after the day on which the Commission initially approved the agreement; unless
· it is satisfied that there are serious public interest grounds for not approving the variation.[2]
I have considered the application and accompanying declaration in support of the application and the material that is now before the Commission.
In relation to the various pre-employee approval requirements and the steps necessary to ensure that the agreement of the employees is genuine, I am satisfied that these have been complied with. The variation, and the Agreement as varied, also meets the various other approval requirements.
In relation to the BOOT, I have considered the terms of the Agreement as varied and note that whilst the variation does reduce some conditions when compared with the existing instrument, there is only one element that is directly canvassed in the relevant modern award. The Waste Management Award 2010 contains a provision[3] that, at least broadly, was reflected in clause 10.4.8 of the Agreement. The effect of the proposed variation is to provide that the potential conversion from casual to full or part-time employment becomes a matter of discretion for the employer. Under the existing Agreement, there is an obligation for the employer not to unreasonably refuse such a request and this would presumably operate in the context of the dispute resolution procedure that permits disputes about the Agreement to ultimately be arbitrated by the Commission.
I also consider that the import of s.211(1)(a) of the Act is that I must consider the BOOT (and the other relevant requirements) in the context of the modern award and the Agreement as varied at the point that the variation application is made.
The Agreement as varied continues to provide wages levels that exceed those in the modern award by some margin. The hours of work, penalty rates and related arrangements under the Agreement are also consistent with, or are more beneficial, than the modern award.
I have considered the package of terms provided by the Agreement as varied against the modern award in relation to each class of current and prospective employee and I find the BOOT has been met.[4] In relation to the casual employees, the reduction in the conversion benefit does not, given the other provisions that apply to these employees, mean that they will not be better off overall. The pay levels, which are between 27 and 35 per cent higher than the modern award rates for casuals, and the related conditions, are of course part of that assessment.
Whilst the approval of the variation has been opposed, there has been no direct suggestion from the TWU that serious public interest grounds exist that should lead to the non-approval of the variation.
The public interest is generally regarded as being the consideration of interests beyond the immediate circumstances of the parties and often involves reference to the objects of the Act in terms of those interests.
As in the case of the statutory objects of the Act set out in s.3 and s.171, in this matter, there are some competing considerations. These include the confidence that employees and other parties should have that in making an enterprise agreement that instrument will be honoured for its duration. Equally however, the Act contemplates that Agreements can be varied by agreement during their term and the capacity for parties to adjust to changing circumstances is also an important factor.
The circumstances here have changed during the life of the Agreement given the impact of the Code upon the capacity for Veolia to bid for and win an important segment of work associated with the construction industry that is impacted by the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).
There are various protections and requirements built into the provisions permitting a variation to take place by agreement and provided that agreement to vary is genuine and the end result meets the various BOOT, NES and other safety net requirements, the actual provisions are primarily a matter for the parties themselves.
In this case, there are no serious public interest grounds for not approving the variation.
I am satisfied that each of the requirements of ss.210 and 211 of the Act as relevant to this application for approval have been met.
The variation to the Agreement is approved and will operate on and from 9 June 2017.
A consolidated version of the Agreement, as varied, is attached to this decision.
COMMISSIONER
[1] Made under section 34 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).
[2] See the more detailed discussion in Veolia Environmental Services (Australia) Pty Ltd [2016] FWCA 5055.
[3] Clause 15.
[4] I have applied the approach evident in Duncan Hart and AMIEU v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo[2016] FWCFB 2887.
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