Cleanaway Operations Pty Ltd [2020] FWCA 1840 (7 April 2020)

Last Updated: 28 August 2020

[2020] FWCA 1840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement
Cleanaway Operations Pty Ltd

(AG2020/609)

CLEANAWAY LIQUID WASTE CAIRNS ENTERPRISE AGREEMENT 2019

Waste management industry
COMMISSIONER HUNT	BRISBANE, 7 APRIL 2020

Application for variation of the Cleanaway Liquid Waste Cairns Enterprise Agreement 2019.

[1] On 10 March 2020, Cleanaway Operations Pty Ltd (Cleanaway) sought to vary the Cleanaway Liquid Waste Cairns Enterprise Agreement 2019 (the Agreement) under s.217 of the Fair Work Act 2009 (the Act). Cleanaway asserted that there was an ambiguity or uncertainty within a discrete part of the Agreement, and the application could properly be made pursuant to s.217 of the Act.

[2] Directions were issued to Cleanaway on 18 March 2020. On 19 March 2020, Cleanaway lodged a revised Form F1 – Application, amending the variation sought to the Agreement. Subsequently, and on the same day, further Directions were issued to Cleanaway.

[3] Cleanaway seeks to vary clause 7.1 of the Agreement, which sets out the employer’s classification levels, with Level 1 being the lowest classification level, and level 3 being the highest classification level. Obvious ambiguity or uncertainty is asserted where it is stated that level 1 requires an employee to have completed the requirements of level 2, a level 2 employee to have completed the requirements of level 3, and a level 3 employee to have completed the requirements of level 4, which does not exist.

[4] Clause 7.1 of the Agreement is as follows:

“7.1 Employees will be classified by the Employer in the following levels:

(1) Level 1

Indicative non-exhaustive criteria:

(a) Completed the requirements of Level 2.

(b) Current Queensland Transport HR or HC licence

(c) First aid certificate.

(d) For HC licensed drivers, qualified and, if necessary, licensed in at least 3 of the following.

For HR licensed drivers, qualified and, if necessary, licensed in all of the following

Q Rail induction and demonstrated competency in the removal of waste from the Portsmith Rail Yard and participate in the Q Rail train roster	Possession of Port access card or MSIC card.	Deemed competent in the operation of Mono pumps.
Possession of Q Rail Trackside Pass.	Deemed competent in the operation of vacuum pumps	Possession of ASIC card

And at least 1 of the following

Dangerous Goods Licence – Bulk and / or completion of recognised packaged DG handling course	Forklift operation	Induction to Kagara Zinc
SGS Clearance	Confined Space Entry

(2) Level 2

Indicative non-exhaustive criteria:

(a) Completed the requirements of Level 3.

(b) Current certification for Fatigue Management

(c) Current Queensland Transport HC Licence plus one of the following

Backhoe Licence

Loader Licence

Skid Steer Licence

(d) Current Queensland Transport HC Licence plus one of the following

Q Rail induction and demonstrated competency in the removal of waste from the Portsmith Rail Yard.	Dangerous Goods Licence	Forklift operation
Mine Generic Induction	Possession of Port access card or MSIC card.	SGS Clearance
Deemed competent in the operation of vacuum pumps	Confined Space Entry	Metalliferous Surface Induction
Possession of ASIC card	Induction to Kagara Zinc	Deemed competent in the operation of Mono pumps.

(3) Level 3 (Leading Hand)

Indicative non-exhaustive criteria:

(a) Completed the requirements of Level 4.

(b) Current certification for Fatigue Management

(c) Current Queensland Transport Minimum HC class Licence

(d) Demonstrated leadership qualities and willing to undertake basic industrial relations training, customer sales and service training

(e) Detailed knowledge of all company services

(f) Ability to utilise company transport and run sheet software and to provide back up support to Transport Manager or Transport Supervisor

(g) Qualified and, if necessary, licensed in at least 4 of the following:

Q Rail induction and demonstrated competency in the removal of waste from the Portsmith Rail Yard.	Dangerous Goods Licence	Forklift operation
Mine Generic Induction	Possession of Port access card or MSIC card.	SGS Clearance
Deemed competent in the operation of vacuum pumps	Confined Space Entry	Metalliferous Surface Induction
Possession of ASIC card	Induction to Kagara Zinc	Deemed competent in the operation of Mono pumps.
Certificate III in transport.

7.2 Each progressively higher level requires the possession of greater skills, experience, qualifications and capacity to work without supervision than the preceding level. The classification structure is business needs based and progression is only on appointment by the Employer.”

[5] In particular, the variation sought by Cleanaway relates to clauses 7.1(1)(a), 7.1(2)(a), 7.1(2)(c) and 7.1(3)(a).

Clause 7.1(2)(c)

[6] Cleanaway stated that despite the provision with the Agreement, it does not require a level 2 employee to hold a current Queensland Transport HC Licence, plus one of the following:

Backhoe Licence

Loader Licence

Skid Steer Licence

[7] In correspondence to Cleanaway dated 19 March 2020, I advised that Clause 7.1(2)(c) of the Agreement cannot be struck out pursuant to s.217 of the Act, as it was unclear on what basis Cleanaway was asserting that it was an ambiguity or uncertainty. Cleanaway was invited to provide submissions on this issue. I recommended that if Cleanaway no longer required its employees to obtain the above qualification(s), it was free to communicate to affected employees in such manner. Cleanaway accepted this and confirmed that employees were to be advised these qualifications are no longer required to be classified as a level 2 employee.

Clause 7.1(1)(a), 7.1(2)(a) and 7.1(3)(a)

[8] Cleanaway submitted that the reference to the level 2 in clause 7.1(1)(a), the reference to level 3 in clause 7.1(2)(a) and the reference to level 4 in clause 7.1(3)(a) created ambiguity and uncertainty.

[9] The proposed variation would:

• remove clause 7.1(1)(a) in its entirety;
  
• replace clause 7.1(2)(a) with “Completed requirements of Level 1”; and
  
• replace clause 7.1(3)(a) with “Completed requirement of Level 2”.
  

[10] The employee bargaining representative and the employees covered by the Agreement were invited to provide their views about the variation application. No views were expressed by the employees covered by the Agreement and Cleanaway confirmed the employee bargaining representative was no longer employed by the company.

[11] I am satisfied that the variation is necessary as there currently exists an ambiguity or uncertainty.

[12] In order to remove ambiguity and uncertainty in relation to the particular provisions of the Agreement, I order that the Agreement be varied as follows:

1. Delete clause 7.1(1)(a), 7.1(2)(a) and 7.1(3)(a).
   
2. Insert clause 7.1(2)(a), which will now read:
   

“Completed requirements of Level 1.”

3. Insert clause 7.1(3)(a), which will now read:
   

“Completed requirements of Level 2”.

[13] Accordingly, the application is granted and the variation to clauses 7.1(1)(a), 7.1(2)(a) and 7.1(3)(a), as sought, will operate from today, 7 April 2020.

COMMISSIONER

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