Veolia Environmental Services (Australia) Pty. Ltd. T/A Veolia Environmental Services (Australia) Pty. Ltd.
[2024] FWCA 3392
•30 SEPTEMBER 2024
| [2024] FWCA 3392 |
| 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.
(AG2024/3320)
| Waste management industry | |
| COMMISSIONER REDFORD | MELBOURNE, 30 SEPTEMBER 2024 |
Application for approval of the Veolia Environmental Services Australia Resource Recovery (Tasmania) Enterprise Agreement 2024 - 2026
An application has been made for approval of an enterprise agreement which, according to clause 1.1.1 of its terms, is called the Veolia Environmental Services Australia Resource Recovery (Tasmania) Enterprise Agreement 2024-2026 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Veolia Environmental Services (Australia) Pty Ltd T/AS Veolia Environmental Services (Australia) Pty Ltd (Veolia Environmental Services).
Undertakings
In response to several issues raised with Veolia Environmental Services in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. The undertakings relate to:
(a)The interaction between the Agreement and the National Employment Standards (NES) (NES precedence undertaking); and
(b)The interaction between the Agreement and the relevant Award, the Waste Management Award 2020 (the Award) (the Award precedence undertaking); and
(c)Clause 4.1.2 of the Agreement, which relates to the ordinary hours of work.
Pursuant to s 190(4) of the Act the views of the Transport Workers Union of Australia (NSW/Queensland/Vic/Tas Branch) (TWU) were sought in relation to those undertakings. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the Agreement.
Genuine Agreement
The Notice of Employee Representational Rights (NERR) distributed to employees by Veolia Environmental Services on 18 March 2024 appears to make a reference to a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error, and employees covered by the Agreement were not likely to have been disadvantaged by it.
Mr Thomas Dalmazzo, a Human Resources Advisor Veolia Environmental Services, made a Form F17B Employer’s declaration in support of the application, which outlines the steps taken by Veolia Environmental Services to obtain the genuine agreement of the employees who will be covered by the agreement.
The TWU is a bargaining representative for the agreement and has filed a Form F18 Declaration in relation to the application, in which it indicates it supports the approval of the agreement by the Commission.
Taking into account the matters outlined by Mr Dalmazzo in the Employer’s declaration, and also the views expressed by the TWU (in the context of paragraph 19 of the Statement of Principles on Genuine Agreement (Statement of Principles)) I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.
The National Employment Standards
Veolia Environmental Services has provided an undertaking in relation to the interaction between the Agreement and the NES – the NES precedence clause. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency.
On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:
(a)Clause 5.8 of the Agreement does not provide for paid family and domestic violence leave, as is provided for in s 106BA of the Act. On the basis of the NES precedence undertaking, the superior entitlement provided for in the NES will apply.
(b)Clause 5.5 of the Agreement provides for compassionate leave however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence undertaking, the superior entitlement provided for in the NES will apply.
(c)Clause 5.13 of the Agreement, which deals with public holidays, does not expressly provide for an entitlement for employees to be absent from work on a public holiday, within the meaning of s 114(1) of the Act. On the basis of the NES precedence undertaking, the superior entitlement provided for in the NES will apply.
BOOT Test
Veolia Environmental Services has provided an undertaking in relation to the interaction between the Agreement and the relevant Award – the Award precedence clause. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the Award, and the Award provides a greater benefit, the Award provision will apply to the extent of any inconsistency. I consider this remedies several matters which may have otherwise had impact on the application of the BOOT Test in relation to the Agreement, including the following:
(a)the Agreement clause 3.4 – allowances - (several allowances provided for in the Award are not provided for in the Agreement, such as 16.2(b), (c) and (d) and clause 16.3(b)).
(b)the Award clause 14.2 – overtime meal breaks - (there is no provision in the Agreement for additional breaks when working overtime, such as is contemplated by clause 14.2 of the Award (see agreement clause 4.7)).
(c)the Award clause 19.5 – there is no provision in the Agreement for call back
[13] An undertaking was also provided in relation to ordinary hours of work, such that clause 4.1.2 of the agreement will not apply, and will be replaced with the words set out in the undertaking marked “3” given by Veolia Environmental Services and attached in Annexure A.
Mandatory clauses
Section 205A of the Act provides an enterprise agreement must include a delegates’ rights term and, if an agreement’s delegates’ rights term is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates, then the term in the agreement has no effect, and the award term is taken to be a term of the enterprise agreement.
Clause 6.9 of the agreement provides for “delegate recognition” but appears less favourable than clause 27A of the Award in several respects. Pursuant to s 205A of the Act, clause 27A of the Award is taken to be a term of the agreement.
Consideration
Taking into account the foregoing, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters set out in ss 193A(2) – (7).
The TWU, a bargaining representative for the Agreement, supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the TWU.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 7 October 2024.
COMMISSIONER
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ANNEXURE A
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