Advanced Traffic Management Pty Ltd

[2019] FWCA 4475

[2019] FWCA 4475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Advanced Traffic Management Pty Ltd
(AG2018/3693)

ADVANCED TRAFFIC MANAGEMENT, TRAFFIC MANAGEMENT AGREEMENT 2012 TO 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 JUNE 2019

Application for termination of the Advanced Traffic Management, Traffic management Agreement 2012 to 2015.

[1] Advanced Traffic Management Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the Advanced Traffic Management, Traffic management Agreement 2012 to 2015 1 (Agreement). The Agreement is expressed to cover the Applicant and its employees who are covered by clause 4 of the Agreement. The Agreement has passed its nominal expiry date and there are employees employed by the Applicant covered by the Agreement.

[2] Section 225 of the Act provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[3] Section 226 of the Act provides:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] On 6 September 2018, directions were issued for the filing of material by the Applicant to address s.226 of the Act including the views of the employees, the circumstances of the employees and the likely effect of the termination on the employees covered by the Agreement.

[5] The Applicant provided submissions identifying four benefits in the Building and Construction General Onsite Award 2010 (Award) that are not contained in the Agreement and therefore the employees are better off under the Award rather than the Agreement. These benefits include Saturday rates, night work, safety boots and personal protective equipment.

[6] The Applicant also provided copy of letters that were provided to employees stating that since the passing of the nominal expiry date of the Agreement, the Applicant has been maintaining wages in line with the Award rather than the Agreement.

[7] On 5 February 2019, my Chambers advised the Applicant of my concern that the documents provided did not adequately address s.226 of the Act. Further material was requested to address whether the termination is not contrary to the public interest, the views of the employees, the circumstances of the employees and the likely effect of the termination on the employees.

[8] On 1 and 2 May 2019, the Applicant provided an outline of submissions and documents to support the termination of the Agreement. The Applicant contended that:

• given the industry change over the years and the evolvement of the better off overall test (BOOT), it is unlikely that the Agreement would pass the BOOT compared to the Award now;

• by reverting to the Award, it will remove the requirement of bargaining for a new agreement and ensure that employees receive fair conditions;

• since the approval of the Agreement, only two employees who voted for the Agreement remain employed;

• the Agreement is vague about increases and does not reference increases or when they are to occur;

• the Agreement also references other Awards making the Agreement difficult to read and interpret;

• to implement a new agreement would be out of the scope of current management and would require external resources;

• many traffic management companies choose to work under the Award meaning that the Applicant would be on an even playing field with its competitors; and

• 69 out of 75 employees have voted in relation to the termination and all 69 voted in favour of terminating the Agreement and reverting to the Award.

[9] Based on the material contained in the employer’s declaration and other material filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. The Agreement undermines the safety net terms and conditions of employment for which provision is made under the NES and the Award. The employees who are covered by the Agreement will not suffer a disadvantage by reason of the Agreement’s termination. The Award provides superior entitlements which will apply if the Agreement is terminated. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. There are no matters of which I am aware which would weigh against the appropriateness of terminating the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[10] The termination will operate from 28 June 2019.

[11] An order giving effect to this decision is separately issued in PR709781.

DEPUTY PRESIDENT

 1   AE893170

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