D&D Traffic Management P/L

[2022] FWCA 4118

[2022] FWCA 4118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

D&D Traffic Management P/L

(AG2022/3996)

D & D Traffic Management & Other Work - Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 24 NOVEMBER 2022

Application for approval of the D & D Traffic Management & Other Work - Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the D & D Traffic Management & Other Work - Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by D&D Traffic Management P/L. The Agreement is a single enterprise agreement.

1. I had a number of concerns about the Agreement. These concerns were raised with the Applicant by way of correspondence on 30 September 2022. On 10 October 2022 the Applicant provided a response to the concerns raised by way of submissions and proffered Undertakings. The Undertakings were not attached to the correspondence provided to my Chambers on 10 October 2022. Upon further correspondence, the Undertakings were provided to my Chambers on 11 October 2022.

1. On 4 October 2022 by way of correspondence, the Australian Workers’ Union provided a Form F18 –Declaration of employee organisation in relation to an application for approval of an enterprise agreement (Form F18). The Australian Workers’ Union advised the Fair Work Commission that it does not support approval of the Agreement by the Commission.

1. Having considered the submissions and undertakings from the Applicant and the Form F18 from the Australian Workers’ Union, I had further concerns which were raised with the Applicant by way of correspondence on 13 October 2022. Parties were advised they would be provided with an opportunity to respond to the remaining concerns during the Hearing on 18 October 2022.

1. I conducted a Hearing on 18 October 2022 in order to deal with the issues. The Applicant and the Australian Workers’ Union appeared and made submissions.

1. On 24 October 2022 the Applicant provided a response to the issues raised by the Australian Workers’ Union during the Hearing with further undertakings and submissions. On 2 November 2022 the Australian Workers’ Union responded to the submissions and undertakings provided by the Applicant.

1. Having considered the submissions from the Australian Workers’ Union and submissions and undertakings from the Applicant, I had remaining concerns that employees could not be considered better off overall. On 8 November 2022 these concerns were raised with the Applicant, and the views of each person who the Commission knows is a bargaining representative for the agreement were invited by way of correspondence.

1. On 16 November 2022 my Chambers received correspondence from the Applicant. providing further submissions and undertakings.

1. No further views on the further undertakings were raised with the Commission by any bargaining representative(s) for the agreement by the date specified of 23 November 2022.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the agreement. The undertakings provided resolve my concerns as the application of the better off overall test.

1. 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.

1. The Australian Workers’ Union 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 December 2022. The nominal expiry date of the Agreement is 30 July 2026.

COMMISSIONER

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<AE518290  PR748237>

Annexure A