Gunnedah Basin Haulage Pty Ltd

[2023] FWCA 1995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gunnedah Basin Haulage Pty Ltd

(AG2023/1866)

GUNNEDAH BASIN HAULAGE ENTERPRISE AGREEMENT 2023

Road transport industry
COMMISSIONER CRAWFORD	SYDNEY, 30 JUNE 2023

Application for approval of the Gunnedah Basin Haulage Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Gunnedah Basin Haulage Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gunnedah Basin Haulage Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 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.

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, based on the undertaking provided by the Applicant. I consider the following provisions in the Agreement will be addressed by that undertaking:

(i)Clause 6.2(d)(ii) which purports to exclude casual employees from some NES entitlements.

(ii)Clause 14.5(c) which may have excluded NES notice entitlements in relation to a dismissal arising from abandonment of employment.

(iii)Clause 19 does not identify pregnancy as a ground for making a request for flexible working arrangements.

I am satisfied that the undertaking provided by the Applicant concerning the operation of clause 7.2(c) ensures the provision operates with sufficient clarity to satisfy the BOOT.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Gunnedah Basin Haulage Pty Ltd applied for approval of the Gunnedah Basin Haulage Enterprise Agreement 2023. The applicants sought approval of the agreement under the Fair Work Act 2009. The respondents, representing the employees, raised concerns about certain terms and conditions of the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Act, including ensuring that it provided for fair and reasonable terms and conditions of employment.

The primary legal issues before the Commission were whether the agreement provided for fair and reasonable terms and conditions of employment, and if it met the requirements for approval under the Fair Work Act. The respondents argued that certain provisions were not fair and reasonable, particularly those related to shift patterns, overtime, and penalty rates. The applicants contended that the proposed terms were necessary to ensure the continued operation of the business and to maintain competitiveness in the industry.

The Commission found that while some provisions were contentious, the overall agreement provided for fair and reasonable terms and conditions of employment. The Commission noted the importance of the agreement in maintaining the operational viability of the business and considered the economic context in which the parties were operating. The Commission determined that the benefits of the agreement, including the preservation of jobs and the continued operation of the business, outweighed the concerns raised by the respondents. Consequently, the Commission approved the Gunnedah Basin Haulage Enterprise Agreement 2023.

In approving the agreement, the Commission emphasised the need for continued dialogue between the parties to address any future concerns and to ensure that the agreement continued to meet the requirements for fair and reasonable terms and conditions of employment. The Commission also noted that it would be available to intervene if any issues arose that could not be resolved through negotiation. The final orders included the approval of the agreement, with a requirement for ongoing consultation and negotiation between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established