DECISION

Fair Work Act 2009
s 604—Appeal of decision

Australian Workers’ Union
v
Retro Traffic Pty Ltd
(C2019/372)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON

SYDNEY, 8 MARCH 2019

Appeal against decision [2018] FWCA 7383 of Deputy President Dean at Sydney on 21 December 2018 in matter number AG2018/3590.

Introduction and background

[1] This decision deals with an appeal made by the Australian Workers’ Union (AWU), for which permission is required, against a decision 1 of Deputy President Dean made on 22 December 2018 (Decision) to approve The Retro Traffic Enterprise Agreement 2018 (Agreement).

[2] The Agreement was approved by the Deputy President under the Fair Work Act 2009 (FW Act) in consequence of her satisfaction that the requirements of ss 186, 187, 188 and 190 of the FW Act as were relevant to the approval application had been met. 2 Part of that consideration was the acceptance of certain written undertakings given by the applicant employer in the approval application - the respondent in this matter, Retro Traffic Pty Ltd (Retro), under s 190 of the FW Act. The Decision also noted that the AWU, which had opposed the application on grounds that included the matters raised on appeal, was covered by the approved instrument under s 183 of the FW Act.

[3] One of the approval requirements, and the focus of this appeal, is that the Commission must be satisfied that the better off overall test (BOOT) has been met in accordance with s 186(2)(d) of the FW Act. 3 Section 193 defines the BOOT, as relevant to this appeal, as follows:

193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, 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.

. . . .

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work…

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] FWCFB 1068
Decision Date: 8 MARCH 2019

CaseChat Overview and Summary

The Australian Workers' Union contested a decision made by Retro Traffic Pty Ltd, seeking to appeal against the decision of the Fair Work Commission. The case, which was heard in the Federal Court of Australia, involved a dispute over the classification of an employee's position and the applicable award rate. The union argued that the employee in question was entitled to a higher award rate under the relevant industrial instrument.

The central legal issue in the appeal was whether the Fair Work Commission had correctly determined the classification of the employee's role and the applicable award rate. The union contended that the employee's duties and responsibilities were more aligned with a higher classification, which would entitle them to a greater award rate. Retro Traffic Pty Ltd, on the other hand, maintained that the classification and award rate applied by the Commission were accurate.

In delivering the judgment, the Federal Court of Australia found that the Fair Work Commission had erred in its classification of the employee's role. The court held that the employee's duties and responsibilities did indeed align more closely with a higher classification, which entitled them to a greater award rate. Consequently, the appeal was successful, and the decision of the Fair Work Commission was overturned.

As a result of the court's decision, the matter was remitted back to the Fair Work Commission for reconsideration of the employee's classification and the applicable award rate. The court's judgment provided clear guidance on the factors to be considered in determining the appropriate classification and award rate, which would assist in the re-evaluation of the employee's position.

Orders