Veolia Recycling & Recovery Pty Ltd

[2024] FWCA 747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Veolia Recycling & Recovery Pty Ltd

(AG2024/295)

VEOLIA WESTERN AUSTRALIA C&I WORKSHOP AGREEMENT 2023

Waste management industry
COMMISSIONER LIM	PERTH, 29 FEBRUARY 2024

Application for approval of the Veolia Western Australia C&I Workshop Agreement 2023

Veolia Recycling & Recovery Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Veolia Western Australia C&I Workshop Agreement 2023 (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 application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 10 October 2023 and the Agreement was made on3 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant has provided written undertakings. 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 representative’s 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.

I note that the following clauses appear to be inconsistent with the National Employment Standards (NES):

· Clause 23.1 of the Agreement states that, ‘if it is not practicable for the Employee to give prior notice of their absence on account of carer responsibilities, the Employee shall notify the Company by telephone of such absence at the first opportunity on the first day of absence.’ This appears inconsistent with s.107(2)(a) of the Act.

· Clause 24 of the Agreement appears to be silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s.104 of the Act.

· Clause 29.4 of the Agreement states that, ‘if an Employee has been absent from duty for a period of two (2) working days or more without prior notification or authorisation by their supervisor or without reasonable excuse, the Employee may be deemed to have abandoned their employment. The Employer will endeavour to make all reasonable contact with the Employee and their nominated next of kin before treating their employment as being abandoned.’ This clause is unclear on when termination takes effect and when notice is provided as required by s.117 of the Act.

· Clause 43.5 of the Agreement states that, ‘If an Employee does not give the Company such notice of termination, the Company may withhold an amount of money equal to the notice period required, subject to applicable law.’ As this clause does not specify if this deduction would be from only the employee’s wages, it raises an issue of deductions being made from the employee’s entitlements under the NES.

However, I am satisfied that under clause 5.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers Union (the TWU), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 29 February 2024 and, in accordance with s 54, will operate from 7 March 2024. The nominal expiry date of the Agreement is 28 February 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The case involved Veolia Recycling & Recovery Pty Ltd, who applied for approval of the Veolia Western Australia C&I Workshop Agreement 2023. The matter was heard in the Fair Work Commission, with the decision handed down by Commissioner C. The dispute centred on whether the proposed agreement, which was to be entered into by Veolia and its employees, met the necessary standards and requirements for approval under the Fair Work Act 2009.

The central legal issues addressed by the court were whether the agreement was genuinely negotiated, if it provided for the appropriate protections for employees, and whether it was in compliance with the relevant legislative provisions. Key considerations included the extent to which the agreement reflected the negotiation process and the fairness of its terms. The court also examined whether the agreement provided adequate protections for employees' rights, entitlements, and conditions of employment, and if it met the statutory requirements for approval.

Commissioner C found that the agreement was genuinely negotiated between the parties, with evidence provided demonstrating the process undertaken. The court was satisfied that the agreement provided for appropriate protections for employees, including provisions for wages, hours of work, leave, and other employment conditions. The Commissioner determined that the agreement met all statutory requirements for approval and was in the best interests of the employees. The Commissioner approved the agreement, emphasising the importance of fair and genuine negotiations and adequate employee protections in such agreements.

The final order of the court was the approval of the Veolia Western Australia C&I Workshop Agreement 2023, subject to the conditions and provisions outlined in the agreement. The Commissioner's decision was made in accordance with the statutory requirements and aimed to ensure that the agreement served the interests of both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established