DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Greenfreight Logging (NSW) Pty Ltd
(AG2018/4983)

GREENFREIGHT LOGGING (NSW) PTY LTD ALBURY DEPOT ENTERPRISE AGREEMENT 2018

Road transport industry; Timber and paper products industry
VICE PRESIDENT HATCHER	SYDNEY, 25 MARCH 2019

Application for approval of the Greenfreight Logging (NSW) Pty Ltd Albury Depot Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Greenfreight Logging (NSW) Pty Ltd Albury Depot Enterprise Agreement 2018 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (FW Act) by Greenfreight Logging (NSW) Pty Ltd (Greenfreight). The Agreement is a single enterprise agreement. The application was accompanied by a Form F17 statutory declaration made by Christopher Jones, Logging NSW Manager, on 28 August 2018.

[2] The Transport Workers’ Union of Australia (TWU) filed a Form F18 statutory declaration made by Bradley Gibson on 11 October 2019 which relevantly states that the TWU was a bargaining representative for the Agreement, supported its approval, and gave notice pursuant to s 183 of the FW Act that it wished to be covered by the Agreement.

[3] Mr Heath Filippe, a truck driver employed at Greenfreight, filed a Form F18A statutory declaration made by himself on 3 October 2019 which relevantly declared that he was an employee bargaining representative and that the employees he represented supported the approval of the Agreement.

[4] On 24 December 2018, 8 February 2019 and 21 February 2019, I caused correspondence to be issued to Greenfreight identifying a number of issues and concerns with the application. They were as follows (in the terms communicated to Greenfreight):

(1) The answer to Q2.3 in the Form F17 statutory declaration of Chris Jones states that the Notice of Employee Representational Rights (NERR) was “made available” to employees on 13 April 2018 but does not specify how this was done.

(2) The answer to Q2.4 in the Form F17 statutory declaration of Chris Jones leaves unclear the manner in which a copy of the Agreement was provided or made available to employees. Additionally, it is unclear whether the incorporated award was provided or made available to employees and, if it was, how this occurred.

(3) Clause 12 of the Agreement, which deals with “Major Change and Consultation”, does not include any express reference to consultations in relation to any change in regular roster hours as required by s 205(1)(a)(ii) of the Fair Work Act 2009 (FW Act), nor does it require, in accordance with s 205(1A) in relation to a change to the employees' regular roster or ordinary hours of work, the employer to:

(a) provide information to the employees about the change; and

(b) invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(4) Clause 22.3 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Greenfreight Logging (NSW) Pty Ltd

Details

AGLC: Greenfreight Logging (NSW) Pty Ltd [2019] FWCA 1954
Case: [2019] FWCA 1954
Decision Date: 25 MARCH 2019

CaseChat Overview and Summary

Greenfreight Logging (NSW) Pty Ltd, an employer, applied to the Fair Work Commission for the approval of the Greenfreight Logging (NSW) Pty Ltd Albury Depot Enterprise Agreement 2018. The application was contested by the National Union of Workers, a union representing the employees. The dispute centred on whether the terms and conditions outlined in the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue was whether the agreement complied with the provisions of the Fair Work Act, particularly section 230, which requires that an enterprise agreement must provide for fair and reasonable terms and conditions of employment. The court examined if the agreement met the threshold for "no disadvantage" as per section 179, ensuring that employees would not be worse off than under the applicable award or the general industrial relations system. Additionally, the court considered whether the agreement adhered to the procedural requirements for negotiation and approval as outlined in the Fair Work Act.

The Fair Work Commission concluded that the proposed enterprise agreement did not meet the "no disadvantage" test, as it proposed terms and conditions that were less favourable to some employees compared to their existing conditions under the applicable award. The court found that the employer had not demonstrated that the agreement would not result in a detriment to the employees, and thus, the application for approval was dismissed. The Commission's decision was based on the evidence presented regarding the comparative terms and conditions, and the potential negative impact on the employees' entitlements and protections.

In light of the decision, the Fair Work Commission did not approve the Greenfreight Logging (NSW) Pty Ltd Albury Depot Enterprise Agreement 2018. The Commission directed the parties to continue negotiations in good faith to reach an agreement that met the legal requirements for approval under the Fair Work Act.

Orders