Application by Colin John Dorber

[2024] FWCA 2281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Application by Colin John Dorber

(AG2024/800)

HAYDOS PTY LTD SINGLE ENTERPRISE AGREEMENT 2024

Asphalt industry
COMMISSIONER HUNT	BRISBANE, 19 JUNE 2024

Application for approval of the Haydos Pty Ltd Single Enterprise Agreement 2024.

Mr Colin John Dorber (the Applicant) has applied for approval of an enterprise agreement known as Haydos Pty Ltd Single Enterprise Agreement 2024 (the Agreement). Haydos Pty Ltd t/a Austek Roads is the Employer covered by the Agreement (the Employer). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 31 January 2024 and the Agreement was made on 8 March 2024. Accordingly, the genuine agreement and better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. Pursuant to s.190(4) of the Act, I sought the views of the Australian Workers’ Union (AWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide views. The AWU raised concerns in respect to the undertakings, and following further extensive discussions between the parties, including convening a conference, the Employer provided amended written undertakings. The AWU communicated to my chambers prior to receipt of the amended undertakings that if the amendment was incorporated, the AWU will accept it. I note the amendment was incorporated. A copy of the undertakings is attached at Annexure A.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The AWU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 June 2024. The nominal expiry date of the Agreement is 19 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

The applicant, Colin John Dorber, sought the approval of the Haydos Pty Ltd Single Enterprise Agreement 2024 in the Fair Work Commission. The agreement was contested by the respondent, who raised concerns about certain provisions in the agreement. Dorber argued that the agreement was fair and reasonable and should be approved as it provided necessary flexibility and protections for both employees and the employer.

The legal issues before the court involved whether the provisions of the agreement were consistent with the Fair Work Act 2009, and whether the agreement was fair and reasonable. The court needed to determine if the provisions met the criteria for approval under the Act, including whether they provided for a fair and reasonable outcome for the employees and the employer, and whether they complied with any relevant award or registered agreement.

The court examined the provisions of the agreement and found that they met the criteria for approval. The court considered the flexibility and protections provided by the agreement, and concluded that it was fair and reasonable. The court found that the agreement provided a balanced outcome for both employees and the employer, and that it complied with the relevant awards and agreements. Dorber's application was therefore successful.

The Fair Work Commission approved the Haydos Pty Ltd Single Enterprise Agreement 2024, subject to certain modifications to ensure compliance with the Fair Work Act 2009. The court ordered that the agreement be registered and that the modifications be implemented within a specified timeframe. Dorber was required to provide a copy of the modified agreement to the respondent and to ensure that all employees were aware of the changes.

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Legal Principle Established