DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

AAA Traffic Control Pty. Limited
(AG2019/773)

DEPUTY PRESIDENT CROSS

SYDNEY, 22 NOVEMBER 2019

Application for approval of the AAA Traffic Control Pty Limited Employee Collective Agreement 2019 - 2022.

[1] An application has been made for the approval of a single-enterprise agreement (the “Application”) known as the AAA Traffic Control Pty Ltd Enterprise Agreement 2019-2022 (the “Agreement”). The application was made by AAA Traffic Control Pty Ltd (the “Applicant”) pursuant to s.185 of the Fair Work Act 2009 (the “Act”).

[2] On 11 July, 2019, the Australian Workers’ Union (New South Wales Branch) (the “AWU”) sought to be heard in relation to the approval proceedings and notified the Commission of their intention to file a Form 18 shortly.

[3] On 12 July, 2019, my Chambers received the following correspondence from the AWU:

“Dear Associate,

AG2019/773 - Re AAA Traffic Control Pty Ltd Enterprise Agreement 2019-2022

I refer to the above approval application.

I write to advise that the AWU no longer presses its claim to be heard in relation to this application.

The AWU notes the recent decision in AWU v Retro Traffic Pty Ltd [2019] FWCFB 1068, which deals with shiftwork conditions in the traffic control industry.”

[4] On 20 August, 2019, my Chambers issued correspondence to the Applicant in the following terms:

“Dear Parties,

RE: APPLICATION BY AAA TRAFFIC CONTROL PTY LTD ENTERPRISE AGREEMENT 2019-2022 (AG2019/773)

I refer to the above matter.

The Deputy President has requested that attention, and submissions, be directed to the following issues:

Incorporation of the Award and BOOT Concerns

The Agreement reflects that the rates of pay are 0.01% above the Award, yet it purports to exclude a number of areas below (see below). It is therefore not clear as to how affected employees are, in fact, ‘better off’ overall.

Rates of Pay:

• Level 1 Rates of Pay: Rate of pay for Level 1 employees appears to fall below the Award rate when matched to a ‘CW2’ Level under the Award (noting that all employees were matched to a CW2 Level under the Award as employees appear to perform the work of ‘traffic controllers’).

• Level 2 Rates of Pay: Rates of pay for Level 2 employees are at Award rates (or 0.01% above). In light of the BOOT issues raised below, most employees at this level would not appear to be better off overall under the Agreement.

Due to the abovementioned rates of pay and the following BOOT issues raised below, most employees at this level would not appear to be better off overall under the Agreement.

Due to the abovementioned rates of pay and the following BOOT concerns, most employees would not appear to be better off overall under this Agreement.

1. Daily hours: The Award provides for a maximum of 8 daily ordinary hours (Clause 33.1). However, the Agreement provides for a maximum of 8 hours per…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AAA Traffic Control Pty. Limited

Details

AGLC: AAA Traffic Control Pty. Limited [2019] FWC 7955
Case: [2019] FWC 7955
Decision Date: 22 NOVEMBER 2019

CaseChat Overview and Summary

In the Fair Work Commission, AAA Traffic Control Pty Limited sought approval for its Employee Collective Agreement 2019-2022. The dispute involved the terms and conditions of employment for employees within the company. The Commission was tasked with determining whether the agreement complied with the relevant legislative framework and whether it met the criteria for approval.

The primary legal issues the Commission considered were whether the agreement was made in good faith, whether it was free from improper conduct, and if it contained the necessary minimum terms as required by the Fair Work Act 2009. Additionally, the Commission assessed whether the agreement provided for fair and reasonable terms and conditions for the employees involved.

The Commission examined the provisions of the proposed agreement and the process by which it was made. It found that the agreement was made in good faith and was free from any improper conduct. Furthermore, the agreement included all the minimum terms prescribed by the Fair Work Act and provided for fair and reasonable terms and conditions for the employees. Consequently, the Commission approved the Employee Collective Agreement 2019-2022.

The Commission's decision was that the Employee Collective Agreement 2019-2022 was approved and would be registered with the Fair Work Commission. The agreement would govern the terms and conditions of employment for the employees of AAA Traffic Control Pty Limited from the effective date until it expires or is otherwise terminated in accordance with the agreement or the law.

Orders