DECISION

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

AllRoads Solutions Pty Ltd
(AG2019/4133)

ALLROADS SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 5 MARCH 2020

Application for approval of the Allroads Solutions Pty Ltd Enterprise Agreement 2019.

BACKGROUND

[1] AllRoads Solutions Pty Ltd (AllRoads/the Applicant) made an application for the approval of the AllRoads Solutions Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). An assessment of the Agreement and supporting material identified a number of matters for response from the Employer in relation to the pre-approval steps, whether the Agreement met the National Employment Standards (NES) and the better off overall test (BOOT) when compared to the Building and Construction General On-site Award 2010 (the Award).

[1] The Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division (CFMMEU) corresponded with the Commission in relation to the application, referencing the Full Bench decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd 1andstating they had a material interest in the matter. The CFMMEU were invited to provide submissions in relation to the Agreement.

ISSUES

[2] Various issues were raised with the Applicant in correspondence. Matters in relation to the explanation of the terms of the Agreement were remedied by the provision of further information and the summary document that was provided to employees.

[3] In order to be satisfied that the Agreement was consistent with the NES, the Applicant provided undertakings to the matters raised, including a NES precedence clause.

BOOT related matters

[4] With regard to entitlements in relation to overtime and casual employees, it was noted that the Agreement did not provide an entitlement to particular allowances conferred by the Award. The Applicant was requested to address these matters.

[5] The CFMMEU noted that the above issues already raised and questioned whether the Commission can be satisfied on the basis of the material filed by the Applicant that the Agreement had been genuinely agreed to. In particular, the Union contended that the content of the Notice of Representational Rights (NERR) was not clearly explained to employees; in addition it was submitted that the mandatory terms (flexibility clause and consultation clause) were inconsistent with the Award; and the Agreement may not pass the Better Off Overall Test. These matters are addressed below.

EVIDENCE AND SUBMISSIONS

Genuine agreement

[6] The Applicant relied on the following material to establish that the requirements with respect to confirming that genuine agreement had been met. In the Form F17 Employer Statutory Declaration made on 25 October 2019, Mr Dan Fulton, Managing Director, stated at item 2.8 that the following steps were taken to explain the terms of the Agreement and their effect to relevant employees, and what was done to take into account the particular circumstances and needs of the relevant employees:

“All employees were provided with the NERR, enterprise agreement,…

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.

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Details

Case: [2020] FWCA 1222
Decision Date: 5 MARCH 2020

CaseChat Overview and Summary

AllRoads Solutions Pty Ltd, an enterprise engaged in the transportation and logistics industry, sought approval of the Allroads Solutions Pty Ltd Enterprise Agreement 2019 from the Fair Work Commission (FWC). The applicant, represented by legal counsel, applied for the approval of the enterprise agreement, which was intended to govern the terms and conditions of employment for its employees. The dispute arose as the parties could not reach a consensus on certain aspects of the agreement, necessitating intervention by the FWC.

The primary legal issue before the FWC was whether the enterprise agreement complied with the relevant statutory requirements and whether it met the standards for being a lawful and fair agreement under the Fair Work Act 2009. The FWC had to consider the terms of the agreement, the negotiation process, and whether the agreement provided for the fair treatment of employees, including minimum wages, conditions, and entitlements. Additionally, the FWC examined whether the agreement met the "better off overall test" as required by the Act, ensuring that employees were not worse off financially under the agreement.

The FWC determined that the Allroads Solutions Pty Ltd Enterprise Agreement 2019 was compliant with the statutory requirements and met the necessary standards for approval. The FWC found that the agreement provided for fair treatment of employees and satisfied the better off overall test. The FWC took into account the evidence provided by both parties and the broader context of the industry. The FWC also considered the negotiation process and found that the agreement had been negotiated in good faith.

The FWC approved the Allroads Solutions Pty Ltd Enterprise Agreement 2019, setting a precedent for the terms and conditions of employment within the company. The approval ensures that the agreement will govern the relationship between the company and its employees, providing a clear framework for addressing any future disputes or issues.

Orders