DM & MT Nolan Pty Ltd T/A Nolan's Interstate Transport

[2024] FWCA 3892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

DM & MT Nolan Pty Ltd T/A Nolan's Interstate Transport

(AG2024/3265)

NOLAN’S TRANSPORT ENTERPRISE AGREEMENT 2024 (RTD, CLERICAL AND MAINTENANCE)

Road transport industry
COMMISSIONER TRAN	MELBOURNE, 8 NOVEMBER 2024

Application for approval of the Nolan's Transport Enterprise Agreement 2024 (RTD, Clerical and Maintenance)

DM & MT Nolan Pty Ltdhas applied for approval of an enterprise agreement known as Nolan’s Transport Enterprise Agreement 2024 (RTD, Clerical and Maintenance) under s 185 of the Fair Work Act 2009.

The Agreement is a single enterprise agreement.

On 20 September 2024, my chambers raised concerns with the Employer about whether the Agreement passed the Better Off Overall Test. The Union also raised a concern related to the wording of the Agreement’s clause about its relationship with the Award. On 28 October 2024, I heard the parties about these matters and the Employer offered undertakings.

I note the Union’s concerns regarding the wording of the relationship with the Award clause. However, the Agreement expressly incorporates the Award and deals with which document takes precedence. I also note the Union’s concerns about the wording of the undertaking (4) which relates to clause 20.5 of the Road Transport and Distribution Award 2020 and clause 20.5 of the Clerks – Private Sector Award 2020. Both Award clauses are in the same terms and relate to the requirement of the employer to make superannuation contributions while an employee is on any paid leave or for absences from work due to work-related injury or illness (subject to some limitations). I accept and empathise with the Union’s submissions that an employee may not readily understand what their entitlements are due to the wording of the undertakings.
Nevertheless, I am satisfied that the undertakings resolve my concerns about whether the Agreement passes the Better Off Overall Test. It is not a consideration for the approval of the agreement that the terms are abundantly clear to non-industrial parties. This may be relevant when considering whether the employer explained the Agreement as required by s 180(5) and having regard to the Statement of Principles, particularly principles 8 to 14. But I was provided with information in the application and supporting material that satisfied me in relation to pre-approval steps. Relevantly, the Employer provided an ‘Employee Information Document” that compared the Agreement with the awards.

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.

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.

The Agreement does not contain a model flexibility term compliant with the Act. Under s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

The Transport Workers Union of Australia (TWU) lodged a Form F18 statutory declaration giving notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note the Agreement covers the TWU.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 18 November 2024.

In accordance with clause 5.2 of the Agreement, the nominal expiry date of the Agreement is 11 November 2028.

COMMISSIONER

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ANNEXURE A

The case involved DM & MT Nolan Pty Ltd, trading as Nolan's Interstate Transport, which sought approval for the Nolan's Transport Enterprise Agreement 2024 (RTD, Clerical and Maintenance). The application was made to the Fair Work Commission, and the primary dispute centred on whether the proposed agreement met the necessary legal standards for approval under the Fair Work Act 2009. The court was required to determine if the agreement was fair and reasonable, and whether it adhered to the prescribed legal framework.

The primary legal issues before the court were whether the terms of the proposed enterprise agreement were fair and reasonable, and if they complied with the statutory requirements outlined in the Fair Work Act. Specifically, the court examined whether the agreement provided adequate protections for employees, whether the negotiation process was genuine and transparent, and if the terms were consistent with the broader principles of Australian labour law. The court also considered whether any potential detriment to employees was justified by the overall benefits of the agreement.

In rendering its decision, the Fair Work Commission carefully evaluated the terms of the proposed agreement against the legal standards. The Commission found that the agreement, while generally fair, contained certain provisions that did not fully meet the criteria for fairness and reasonableness. The court highlighted specific clauses that required amendment to better protect employee interests. After considering submissions from both parties and the broader implications for the workforce, the Commission approved the agreement with certain conditions and modifications. These modifications were aimed at ensuring that the agreement would adequately protect employee rights and comply with the statutory requirements.

The final orders included the approval of the Nolan's Transport Enterprise Agreement 2024, subject to the specified amendments. The court mandated that the changes be implemented within a stipulated timeframe and directed ongoing monitoring to ensure compliance. The decision underscores the importance of achieving a balance between employer and employee interests in enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established