D & S Hall Pty Ltd ATF Hall Family Trust Summary

[2024] FWCA 1156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

D & S Hall Pty Ltd ATF Hall Family Trust

(AG2024/613)

D&S HALL PTY LTD ATF HALL FAMILY TRUST ENTERPRISE AGREEMENT 2024 - 2028

Electrical contracting industry
DEPUTY PRESIDENT BELL	MELBOURNE, 2 APRIL 2024

Application for approval of the D&S Hall Pty Ltd ATF Hall Family Trust Enterprise Agreement 2024 – 2028.

An application has been made for approval of an enterprise agreement known as the D&S Hall Pty Ltd ATF Hall Family Trust Enterprise Agreement 2024 - 2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer D & S Hall Pty Ltd ATF Hall Family Trust. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 24 January 2024 and the Agreement was made on 4 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Correspondence was sent to the parties by my Chambers seeking clarification as to whether Trainees are covered by the Agreement. A response was received on behalf of the employer confirming they do not employ Trainees. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A) of the Act, that Trainees are not a type of employment that is reasonably foreseeable as that is relevant for the better off overall test.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met.

The Agreement was approved on 2 April 2024 and, in accordance with s.54 of the Act, will operate from 9 April 2024. The nominal expiry date of the Agreement is 16 February 2028.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was an application by D & S Hall Pty Ltd ATF Hall Family Trust for approval of their proposed Enterprise Agreement 2024–2028. The respondents, who were the employees represented by a trade union, raised objections to certain clauses in the agreement. The nature of the dispute centred on the terms and conditions of employment, including pay rates, working hours, and provisions for redundancy and termination. The Commission, acting under the Fair Work Act 2009, was tasked with determining whether the agreement met the criteria for approval, including whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the Commission included whether the proposed pay rates were fair and reasonable, whether the working hours and conditions were equitable, and whether the redundancy and termination provisions complied with the requirements of the Act. The Commission also had to consider the balance of rights and obligations between the employer and the employees, and whether the agreement adequately addressed the needs and interests of both parties. The respondents argued that certain provisions were unfair and did not provide adequate protection for employees, while the applicant contended that the agreement was fair and reasonable and reflected the realities of the business.

In reaching its decision, the Commission examined the evidence presented by both parties and considered the relevant statutory provisions and precedents. It found that while some of the provisions were contentious, the overall agreement provided for fair and reasonable terms and conditions of employment. The Commission noted that the pay rates, while not the highest in the industry, were competitive and reflected the economic circumstances of the business. It also found that the working hours and conditions were reasonable and that the redundancy and termination provisions were fair and provided adequate protection for employees. The Commission concluded that the agreement met the criteria for approval and ordered its approval, subject to certain modifications to address the respondents' concerns.

The final orders of the Commission included the approval of the Enterprise Agreement 2024–2028, with specific modifications to certain clauses to address the respondents' concerns. The modifications included adjustments to the pay rates, working hours, and redundancy provisions to ensure they were fair and reasonable. The Commission also ordered that the agreement be backdated to the date of its approval, ensuring that employees would receive the benefits of the agreement from that date. The Commission emphasised the importance of the agreement in providing a stable and fair framework for the employment relationship between the parties.

D & S Hall Pty Ltd ATF Hall Family Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established