FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Northern Haulage & Diesel Services Pty Ltd
(AG2017/2203)

NORTHERN HAULAGE & DIESEL SERVICES PTY LTD ENTERPRISE AGREEMENT 2017

Road transport industry
COMMISSIONER LEE	MELBOURNE, 5 SEPTEMBER 2017

Application for approval of the Northern Haulage & Diesel Services Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Northern Haulage & Diesel Services Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Northern Haulage & Diesel Services 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2017. The nominal expiry date of the Agreement 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case involves an application by the Fair Work Commission for the approval of the Northern Haulage & Diesel Services Pty Ltd Enterprise Agreement 2017. The application was heard by the Full Bench of the Fair Work Commission, which comprises of two members, Deputy President Ryan and Commissioner Smith. The dispute arose from a disagreement about whether the Enterprise Agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the Enterprise Agreement provided for the proper operation of the enterprise and its employees. Specifically, the court had to determine if the agreement met the 'better off overall test', which requires that the employees be no worse off and at least some of them be better off financially under the agreement compared to the applicable awards. Additionally, the court examined whether the agreement complied with the 'good faith' requirement, ensuring that it was negotiated in good faith and contained provisions that were fair and reasonable.

The Full Bench found that the Enterprise Agreement did not meet the 'better off overall test' as it did not guarantee any employee a financial improvement. Furthermore, the agreement included provisions that could potentially lead to employees being worse off. The court also determined that the agreement did not comply with the 'good faith' requirement, as there was evidence suggesting that the employer did not engage in genuine negotiations with the employees. Based on these findings, the court rejected the application for approval of the Enterprise Agreement.

As a result of the court's decision, the Northern Haulage & Diesel Services Pty Ltd Enterprise Agreement 2017 was not approved, and the employees and employer will continue to be governed by the applicable awards. The court's decision highlights the importance of ensuring that enterprise agreements provide for the proper operation of the enterprise and its employees, as well as the need for genuine negotiations in the agreement process.

Greg Springall

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established