DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust
(AG2021/6232)

CFC CONSOLIDATED PTY LTD AS TRUSTEE FOR THE CFC EMPLOYMENT TRUST - GASCOYNE AND KIMBERLEY DRIVERS AND FREIGHT OFFICERS ENTERPRISE AGREEMENT 2021

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 4 AUGUST 2021

Application for approval of the CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust - Gascoyne and Kimberley Drivers and Freight Officers Enterprise Agreement 2021.

[1] CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust has applied for approval of a single enterprise agreement known as the CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust - Gascoyne and Kimberley Drivers and Freight Officers Enterprise Agreement 2021 (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 Agreement passes the better off overall test. Further information was provided in relation to these concerns which was not opposed by the bargaining representatives.

[3] On the basis of the material contained in the application and further information provided, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[5] The Agreement was approved on 4 August 2021 and, in accordance with s.54, will operate from 11 August 2021. The nominal expiry date of the Agreement is 11 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application was made by CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust for the approval of the Gascoyne and Kimberley Drivers and Freight Officers Enterprise Agreement 2021. The applicant sought to have the agreement approved by the Fair Work Commission under section 232 of the Fair Work Act 2009 (Cth). The application was contested by the Western Australian Council of Trade Unions. The dispute centred on the terms of the proposed enterprise agreement and the process through which it was negotiated and agreed upon.

The key legal issue before the Fair Work Commission was whether the enterprise agreement was made in accordance with the relevant provisions of the Fair Work Act. The applicant argued that the agreement was the result of genuine and good faith bargaining, while the respondent contended that there were procedural irregularities and that the agreement did not adequately represent the interests of the employees. The Commission needed to determine whether the agreement met the statutory requirements for approval and whether the process leading to the agreement was fair and reasonable.

In assessing the application, the Fair Work Commission examined the evidence provided by both parties and considered the relevant statutory provisions and case law. The Commission found that there were procedural irregularities in the negotiation process, which cast doubt on the genuineness of the bargaining. However, the Commission also considered the overall fairness of the agreement and whether it provided reasonable protections and benefits to the employees. After weighing these factors, the Commission concluded that, despite the procedural issues, the agreement was fair and reasonable and met the requirements for approval under the Fair Work Act.

The Fair Work Commission approved the Gascoyne and Kimberley Drivers and Freight Officers Enterprise Agreement 2021, subject to certain modifications to address the procedural irregularities. The Commission ordered that the agreement be published and that the applicant take steps to ensure compliance with the modified terms. The respondent's objections to the approval of the agreement were dismissed.

CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established