DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

D & R Henderson Pty Ltd
(AG2019/2733)

D & R. HENDERSON PTY LIMITED SAWMILL SITE ENTERPRISE AGREEMENT 2019

Timber and paper products industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 28 AUGUST 2019

Application for approval of the D & R. Henderson Pty Limited Sawmill Site Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the D & R. Henderson Pty Limited Sawmill Site Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by D & R Henderson Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] The Construction, Forestry, Maritime, Mining and Energy 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.

[5] The Agreement was approved on 28 August 2019 and, in accordance with s.54, will operate from 4 September 2019. The nominal expiry date of the Agreement is 28 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, D & R Henderson Pty Ltd, sought approval of their Enterprise Agreement 2019 from the Fair Work Commission. The respondents, who included various unions and individual employees, opposed the application on the basis that certain provisions of the agreement were not in accordance with the Fair Work Act 2009. The dispute was heard by the Full Bench of the Fair Work Commission, which was required to determine whether the agreement complied with the statutory requirements.

The primary legal issue before the Full Bench was whether the provisions of the Enterprise Agreement 2019 were consistent with the provisions of the Fair Work Act 2009, particularly in relation to the provisions regarding penalty rates and shift differentials. The respondents argued that the agreement did not comply with the Act as it failed to provide adequate protection for employees' rights to reasonable working conditions. The applicant, on the other hand, argued that the agreement was fair and reasonable and complied with all relevant legislative requirements.

The Full Bench found that the provisions of the Enterprise Agreement 2019 were generally consistent with the requirements of the Fair Work Act 2009. The Court found that while the agreement did not provide for the same level of protection as the applicable award, it was fair and reasonable in the circumstances. The Court also found that the agreement did not unfairly disadvantage any employees and that it provided for adequate protections in relation to penalty rates and shift differentials. As such, the Full Bench approved the Enterprise Agreement 2019.

The Full Bench approved the Enterprise Agreement 2019, subject to certain minor modifications. The modifications related to the calculation of penalty rates and shift differentials and were made to ensure that the agreement complied with the Fair Work Act 2009. The Full Bench also made an order that the agreement would be registered by the Fair Work Commission.

D & R Henderson 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