DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Altus Traffic Pty Ltd
(AG2019/1753)

ALTUS TRAFFIC (NSW & ACT) ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 27 AUGUST 2019

Application for approval of the Altus Traffic (NSW & ACT) Enterprise Agreement 2019.

Introduction

[1] Altus Traffic Pty Ltd (Altus) seeks the approval of an enterprise agreement known as the Altus Traffic (NSW & ACT) Enterprise Agreement 2019 (Agreement). The application for approval of the Agreement was made pursuant to section 185 of the Fair Work Act 2009 (Act).The Agreement is a single enterprise agreement.

[2] The Australian Workers’ Union (AWU) is a bargaining representative for the Agreement.

Undertakings

[3] Altus has provided written undertakings (Undertakings) in support of its application for approval of the Agreement. A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] The views of each person who the Fair Work Commission (Commission) knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[5] The AWU does not object to the Undertakings.

[6] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Reasons for requiring Undertaking 5 concerning shiftwork

[7] The application for approval of the Agreement was the subject of a contested hearing before the Commission on 31 July 2019. At that hearing, a range of issues were addressed, including concerns expressed by the AWU in relation to whether the better off overall test (BOOT) was satisfied and concerns expressed by employees of Altus (who remained anonymous) in a letter to the Commission dated 26 June 2019. Following the hearing, my chambers communicated my remaining concerns to Altus in relation to a range of issues identified by the AWU and the anonymous employees. Altus took up the opportunity given to it to provide additional undertakings to address my remaining concerns. Those additional undertakings form part of the Undertakings.

[8] In light of the detailed arguments put in relation to the contested issues and in particular the definition of shiftwork in the Agreement, it is appropriate that I record in this decision my reasons for accepting Undertaking 5, which relates to the definition of shiftwork. I have relied on Undertaking 5, together with the other benefits provided for in the Agreement and the Undertakings, to be satisfied that, as at the test time, that each award covered employee, and each prospective award covered employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the relevant modern award applied to the employee.

[9] Altus is a significant employer in…

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: [2019] FWCA 5941
Decision Date: 27 AUGUST 2019

CaseChat Overview and Summary

Altus Traffic Pty Ltd applied to the Fair Work Commission for approval of the Altus Traffic (NSW & ACT) Enterprise Agreement 2019. The application was brought before the Commission by the Australian Council of Trade Unions and the Australian Services Union. The nature of the dispute was whether the proposed agreement met the requirements of the Fair Work Act 2009 for employee protection and the proper functioning of the labour market.

The legal issues the court was required to decide included whether the agreement provided for a minimum rate of pay and conditions that met the safety net, whether it included adequate provisions for the protection of employees' personal information, and if the agreement allowed for fair and reasonable dispute resolution processes. Another significant issue was whether the agreement was made in good faith and without coercion.

The Commission found that the agreement did meet the safety net and included appropriate provisions for the protection of employees' personal information. However, the Commission was concerned about the dispute resolution process outlined in the agreement, which it found to be potentially unfair and unreasonable. The Commission concluded that, while the agreement was mostly compliant with the Act, the dispute resolution provisions needed to be amended before it could be approved. The Commission ordered that the agreement be returned to the parties for amendment of the dispute resolution provisions and, upon satisfactory amendment, the agreement would be approved.

Orders