Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) Pty Ltd
[2024] FWCA 4013
•19 NOVEMBER 2024
| [2024] FWCA 4013 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) Pty Ltd
(AG2024/3762)
VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) NSW INDUSTRIAL FACILITIES MANAGEMENT ENTERPRISE AGREEMENT 2024
| Waste management industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 19 NOVEMBER 2024 |
Application for approval of a single-enterprise agreement
An application has been made by Veolia Environmental Services (the Applicant) for approval of an enterprise agreement known as the Veolia Environmental Services (Australia) NSW Industrial Facilities Management Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Commission is required to approve an enterprise agreement if the requirements in s.186 and s.187 are met. A number of concerns were raised with the application about the whether the Agreement met those tests. Where such a concern is raised the Commission may still approve the Agreement if satisfied that an undertaking accepted meets the concern.
Section 186(2)(c) requires that the terms of the Agreement do not exclude the National Employment Standards. An issue was raised as the termination clause at clause 26.1 of the agreement is inconsistent with s117 of the Act. In response the Applicant provided an undertaking. I am satisfied that the undertaking meets the concern.
Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. In essence the BOOT requires the Commission be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.
An issue was raised in relation to classification descriptions and rates of pay for cleaners at level 1 and 2 of the agreement. In response the Applicant provided an undertaking. I am satisfied that the undertaking meets the concern.
Pursuant to s.205A of the Act, an enterprise agreement must include a delegates’ rights term for workplace delegates. If it does not, the most favourable delegates’ rights term in the modern awards that cover the workplace, as determined by the Commission, is taken to be a term of the enterprise agreement. An issue was raised as the Agreement does not include a delegates’ rights term. In response to this Applicant provided an undertaking. I am satisfied that the undertaking meets the concern.
A copy of the undertakings is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.
The Mining and Energy Union is a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement was approved on 19 November 2024 and, in accordance with s.54, will operate from 26 November 2024. The nominal expiry date is 19 November 2028
DEPUTY PRESIDENT
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< AE526789 PR781339>
Annexure A
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