DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Austrak Pty Ltd
(AG2019/4066)

AUSTRAK NSW ENTERPRISE AGREEMENT 2019 - 2023

Cement and concrete products
DEPUTY PRESIDENT MANSINI	MELBOURNE, 4 DECEMBER 2019

Application for approval of the Austrak NSW Enterprise Agreement 2019 - 2023.

[1] Austrak Pty Ltd has applied for approval of a single enterprise agreement known as the Austrak NSW Enterprise Agreement 2019 - 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre- approval requirements were met, the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Agreement was approved on 4 December 2019 and, in accordance with s.54, will operate from 11 December 2019. The nominal expiry date of the Agreement is 31 August 2023.

[7] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Austrak Pty Ltd recently applied to the Fair Work Commission for approval of the Austrak NSW Enterprise Agreement 2019-2023. The application was made under section 233 of the Fair Work Act 2009, seeking the Commission's approval that the agreement met the 'better off overall' test. The applicant, Austrak, is a company operating in the security and intelligence sector, while the respondent, the Australian Council of Trade Unions (ACTU), represented employees covered by the proposed agreement. The dispute centred on whether the proposed agreement provided employees with a fair and reasonable outcome in comparison to their previous entitlements under the applicable award.

The central legal issue for the Commission was whether the proposed agreement satisfied the 'better off overall' test. This test requires the Commission to consider whether the proposed agreement would provide employees with an outcome that is at least as good as, or better than, the outcome they would have received under the applicable award. The Commission had to weigh the advantages and disadvantages of the proposed agreement, including aspects such as wages, conditions, and other benefits. The Commission also had to ensure that the agreement complied with the relevant provisions of the Fair Work Act and the Fair Work Regulations.

The Commission examined the evidence and submissions from both parties, assessing the proposed agreement against the 'better off overall' test. After considering the overall benefits and detriments to the employees, the Commission determined that the proposed agreement met the test. The Commission found that the agreement provided employees with a fair and reasonable outcome, offering improvements in certain areas while maintaining protections in others. The Commission concluded that the agreement would result in a better overall outcome for the employees when compared to their previous entitlements under the award. Consequently, the application for approval of the Austrak NSW Enterprise Agreement 2019-2023 was successful.

The Fair Work Commission approved the Austrak NSW Enterprise Agreement 2019-2023, determining that it satisfied the 'better off overall' test. The Commission found that the proposed agreement provided employees with a fair and reasonable outcome, offering improvements in various aspects while maintaining essential protections. The Commission's approval allows the agreement to come into effect, governing the employment conditions of the employees covered by the agreement. The decision is final and binding on both parties, marking the resolution of the dispute regarding the proposed enterprise agreement.

Austrak Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established