Denrith Pty Limited T/A Divalls Bulk Haulage and Earthmoving (registered)

[2023] FWCA 1640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Denrith Pty Limited T/A Divalls Bulk Haulage and Earthmoving (registered)

(AG2023/1405)

DENRITH TRANSPORT ENTERPRISE AGREEMENT 2022

Road transport industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 6 JUNE 2023

Application for approval of the Denrith Transport Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Denrith Transport 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 Denrith Pty Ltd T/A Divalls Bulk Haulage and Earthmoving (the Applicant). The Agreement is a single enterprise agreement covering a number of related entities namely Denrith Pty Ltd ABN 46 060 434 871 and Brennan’s Earthmoving Pty Ltd ABN 85 660 242 482.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 5 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Denrith Pty Limited trading as Divalls Bulk Haulage and Earthmoving, sought approval of the Denrith Transport Enterprise Agreement 2022. The application was made to the Fair Work Commission, which exercises jurisdiction over the approval of enterprise agreements under the Fair Work Act 2009. The applicant argued that the proposed agreement was a simple, fair, and effective means of regulating the employment relationship between the company and its employees.

The primary legal issues for the Commission to determine were whether the agreement was a "bargained agreement" as defined in section 228 of the Fair Work Act, and whether it contained the "no disadvantage" clause as required by section 233. The applicant submitted that the agreement was a genuine bargain between the parties, negotiated in good faith, and that it did not result in any employee being worse off than they would have been under their existing terms and conditions. The Commission had to consider the evidence and arguments presented by both parties to ascertain the fairness and effectiveness of the agreement.

In its decision, the Commission found that the agreement was a genuine bargain between the applicant and the union, and that it did not result in any employee being worse off than they would have been under their existing terms and conditions. The Commission was satisfied that the agreement contained the necessary "no disadvantage" clause and that it met the requirements for approval under the Fair Work Act. The Commission approved the application and certified the Denrith Transport Enterprise Agreement 2022 as a registered agreement.

The Fair Work Commission approved the application and certified the Denrith Transport Enterprise Agreement 2022 as a registered agreement. The Commission ordered that the agreement be registered and published on the Fair Work Commission's website. The applicant was directed to provide a copy of the registered agreement to all employees covered by the agreement and to take all necessary steps to give effect to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established