DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ensign Australia Pty Ltd
(AG2016/7012)

ENSIGN AUSTRALIA PTY LTD TRANSPORT EMPLOYEES ENTERPRISE AGREEMENT 2016

Road transport industry
COMMISSIONER ROE	MELBOURNE, 13 JANUARY 2017

Application for approval of the Ensign Australia Pty Ltd Transport Employees Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Ensign Australia Pty Ltd Transport Employees Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ensign Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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.

[4] The Agreement was approved on 13 January 2017 and, in accordance with s.54, will operate from 20 January 2017. The nominal expiry date of the Agreement is 13 January 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Ensign Australia Pty Ltd, sought approval of the Transport Employees Enterprise Agreement 2016. The respondent, the Transport Workers Union of Australia, raised concerns regarding the agreement's provisions. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether the agreement complied with the relevant statutory requirements and if it provided for the fair treatment of employees.

The Commission found that the agreement contained provisions that did not align with the statutory framework, particularly regarding the terms and conditions of employment. The dispute centred on whether these provisions could be deemed as not meeting the "better off overall test" and whether the agreement unfairly disadvantaged certain employees. After thorough examination, the Commission concluded that the agreement did not sufficiently protect the interests of all employees, particularly in relation to certain penalty rates and shift differentials. As such, the application for approval was not granted.

In its decision, the Commission outlined specific areas of concern and directed the parties to negotiate in good faith to address these issues. The Commission emphasised the importance of ensuring that all employees were fairly treated under the agreement. Pending the outcome of further negotiations, the Commission deferred making a final determination on the approval of the agreement. The parties were instructed to return to the Commission with a revised agreement that addressed the identified deficiencies.

Ensign Australia 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