CLEANAWAY SOLID WASTE SERVICES KIMBERLEY REGION ENTERPRISE AGREEMENT 2025

Application for approval of the Cleanaway Solid Waste Services Kimberley Region Enterprise Agreement 2025

[1] Cleanaway Operations Pty Ltd trading as Cleanaway (the Employer) has made an application for approval of an enterprise agreement known as the Cleanaway Solid Waste Services Kimberley Region Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by the Waste Management Award 2020 (the Award).

[3] The Agreement contains a workplace delegates' rights term at Clause 11. When compared to the Award, some aspects of the workplace delegates' rights term in the Agreement are less favourable. Pursuant to section 205A(2) of the Act, the workplace delegates' right term in the Award is taken to be a term of the Agreement. A copy of the workplace delegates' right term can be found at Schedule 1 of the Agreement.

Inconsistency with National Employment Standards (NES)

[4] The following provisions of the Agreement appear to be inconsistent with the NES:

1. Clause 41.1 states that employees are entitled to 10 days unpaid leave per calendar year for family and domestic violence. This is inconsistent with s.106A(1) of the Act, which provides that employees are entitled to 10 days paid leave.

2. Clause 41.2 defines 'family and domestic violence' as 'violent, threatening or other abusive behaviour by a family member (including ex-partners) of an Employee that seeks to coerce or control the Employee and that causes them harm or to be fearful.' This definition is more narrow than the definition in s.106B(2) of the Act, which is 'violent, threatening or other abusive behaviour by a close relative of a person, a member of a person's household, or a current or former intimate partner of a person that seeks to coerce or control the person and causes the person harm or to be fearful'.

[5] I note that in accordance with the NES precedence term in clause 5.1 of the Agreement, the above clauses will be read and interpreted in conjunction with the NES.

[6] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:

1. The Agreement appears to be silent on the spread of ordinary hours being between Monday to Friday, as provided in clause 13.2(a)(i) of the Award. As such, employees who work outside their ordinary hours on a Saturday or Sunday may not be entitled to overtime loadings as they would be under the Award. It appears that penalties in clause 28 of 150% for Saturdays and 200% for Sundays apply instead. This is less beneficial when compared to the overtime penalty in the Award of 150% for the first 2 hours only and 200% thereafter in clause 19.1.

2. Clause 26 provides that Level 4-9 employees working overtime Monday-Saturday will be paid 150% for the first 2 hours, and 180% thereafter. This appears to be less beneficial than the overtime loading under clause 19.1 of the Award, which is 200% after 2 hours. This issue also applies for casual employees who receive 190% in excess of 2 hours instead of 210% pursuant to the Award.

3. Clause 27 provides for TOIL but does not contain the entirety of the safeguards outlined in clause 19.6 of the Award. Notably, the clause does not provide that TOIL must be taken within 6 months or must be by written agreement. However, the clause does state that TOIL will accrue 'equivalent to the overtime rate' which is more beneficial than the 1:1 accrual rate as per clause 19.1 (d) of the Award_._

4. The Agreement is silent in relation to a loading for employees required to work on Good Friday, Christmas Day, or any other public holiday during hours which would be outside the range of ordinary working time, as provided by clause 27.5(c) of the Award. Clause 35.2 provides for public holiday penalties however they apply where an employee is 'performing ordinary hours of work.' As such, rates of pay appear insufficient to compensate this deficiency across all classifications.

[7] The Employer provided written submissions to address the above BOOT issues. Having considered these submissions, I am satisfied that employees are better off overall under the Agreement compared to the Award.

[8] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[9] The Transport Workers' Union of Australia (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.

[10] In accordance with s.201(2), I note that the Agreement covers the TWU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 March 2026. The nominal expiry date of the Agreement is 17 October 2029.

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