DECISION

Fair Work Act 2009
s.185—Enterprise agreement

D&D Traffic Management Pty Ltd
(AG2020/3491)

D&D TRAFFIC MANAGEMENT & OTHER WORK ENTERPRISE AGREEMENT 2020

Traffic Management
DEPUTY PRESIDENT CROSS	SYDNEY, 24 FEBRUARY 2021

Application for approval of the D&D Traffic Management & Other Work Enterprise Agreement 2020 – interim decision.

[1] An application has been made for the approval of an enterprise agreement known as the D&D Traffic Management & Other Work Enterprise Agreement 2020 (the Agreement). The application was made by D&D Traffic Management Pty Ltd (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement will cover 271 employees of the Applicant. On 16 November 2020, a Form F16 Application for approval of the Agreement was made, and filed together with a Form F17 Statutory Declaration.

[3] On 14 December 2020, the Australian Workers Union (the AWU), wrote to the Fair Work Commission (the Commission) enclosing a Form F18 Declaration. The AWU’s correspondence outlined certain undertakings proposed by the Applicant that it considered appropriate, but outlined a number of issues that resulted in the AWU opposing approval of the Agreement.

[4] On 18 December 2020, the Commission conducted a hearing to attempt to resolve the outstanding issues between the parties. Arising from that hearing, the Applicant was directed to advise the Commission and the AWU by 13 January 2020, as to whether it pressed the Application. If the Applicant was to press the Application it was directed to file further materials by 13 January 2020, and the AWU was to respond to those materials by 20 January 2020.

[5] On 13 January 2021, the Applicant filed:

(a) an outline of Submissions of the Applicant (the Applicant’s Submission);

(b) an Affidavit of William MacNamara dated 13 January, 2021, dealing with the Agreement voting process;

(d) various documents relating to voting; and

(e) an undertakings document that provided 15 undertakings, many of which resolved issues raised at the hearing on 18 December 2020. That Undertaking document was, insofar as it specified undertakings, as follows:

UNDERTAKINGS

D & D Traffic Management & Other Work - Enterprise Agreement 2020 AG2020/3491

On behalf of D & D Traffic Management Pty Ltd undertakings are hereby given as follows:

1. With respect to Clause 5 of the Agreement, the commencement date will be on the first Saturday to occur on or after 14 days from the date of approval of the Agreement by the Fair Work Commission.

2. In relation to the additional week of annual leave under the National Employment Standards (NES) for certain shiftworkers, the following definition of shiftworker shall apply to employees other than those within the coverage of the Building & Construction General On Site Award 2010 as amended, in lieu of the definition at cl. 11 of the Agreement:

For the purpose of the additional week…

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: [2021] FWC 1017
Decision Date: 24 FEBRUARY 2021

CaseChat Overview and Summary

The case involves D&D Traffic Management Pty Ltd, which sought approval for the D&D Traffic Management & Other Work Enterprise Agreement 2020 from the Fair Work Commission. The nature of the dispute was whether the proposed agreement met the necessary legal standards and requirements for approval under the Fair Work Act 2009. The Fair Work Commission was the court responsible for determining the matter.

The legal issues the court had to address included whether the agreement provided for fair and reasonable terms and conditions, including pay and other employment conditions. The court also needed to ensure the agreement complied with the requirements for independent authorisation and that the process by which the agreement was made was fair. The court examined the submissions and evidence provided by both parties to assess the agreement's compliance with these criteria.

The Fair Work Commission found that the proposed agreement did not adequately address the requirements of the Fair Work Act 2009. The court noted that while the agreement included provisions for fair and reasonable terms and conditions, it failed to sufficiently address specific issues related to the classification of employees and their pay rates. The commission also found that the process for reaching the agreement was not entirely fair, as it did not adequately consider the views of all affected employees. As a result, the court decided not to approve the agreement.

The Fair Work Commission ordered that the proposed agreement be returned to the parties for further negotiation and amendment. The commission emphasised the need for the parties to address the identified issues and ensure that the agreement complied with all legal requirements before seeking approval again.

Orders