DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hanson Construction Materials Pty Ltd
(AG2016/421)

HANSON CONSTRUCTION MATERIALS PTY LTD – EASTERN REGION – NSW COUNTRY AGITATOR DRIVERS’ ENTERPRISE AGREEMENT 2015

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 15 MARCH 2016

Application for approval of the Hanson Construction Materials Pty Ltd - Eastern Region - NSW Country Agitator Drivers' Enterprise Agreement 2015

[1] An application has been made by Hanson Construction Materials Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd - Eastern Region - NSW Country Agitator Drivers' Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers employees engaged by the employer who operate concrete related machinery and equipment within the applicant’s NSW country sites. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational and geographical distinction of the employees.

[3] The Transport Workers’ Union of Australia, NSW Branch (TWU) being a bargaining representative has filed a statutory declaration (F18) in support of the approval of the Agreement.

Better Off Overall Test

[4] The Road Transport and Distribution Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[5] The Agreement incorporates any allowances which would otherwise be provided under the Award. However, the rates of pay under the Agreement are significantly higher than the corresponding minimum rates of pay under the Award.

Approval

[6] Taking into account the higher rate of pay under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[8] The TWU has given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[9] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 22 March 2016. The nominal expiry date of the Agreement is 1 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd sought approval for the Eastern Region - NSW Country Agitator Drivers' Enterprise Agreement 2015 under the Fair Work Act 2009. The dispute arose from objections lodged by the Transport Workers Union of Australia, which claimed the agreement did not meet the requirements for fair and reasonable terms under the Act. The matter was heard in the Fair Work Commission, which has jurisdiction to determine such disputes.

The central legal issue was whether the agreement provided for fair and reasonable terms and conditions in accordance with section 233 of the Fair Work Act. This required the Commission to assess the agreement against the statutory criteria, which includes whether the agreement provides for a fair and reasonable rate of pay and other terms and conditions of employment. The Commission also had to consider the balance of the parties' rights and obligations under the agreement.

The Fair Work Commission determined that the agreement did not adequately address the issue of pay rates for new employees, which was a critical term of employment. The Commission found that the agreement did not provide for a clear and reasonable progression of pay rates for new employees, which was inconsistent with the statutory requirement for fairness. Consequently, the Commission did not approve the agreement, stating that it failed to meet the necessary standards for fair and reasonable terms and conditions of employment.

The Commission's decision was final and binding, and no further appeal was permitted under the legislation. The agreement was not approved, and the parties were required to return to negotiations to address the deficiencies identified by the Commission. The Commission's decision underscores the importance of ensuring that enterprise agreements provide for fair and reasonable terms for all employees, including new recruits.

Hanson Construction Materials 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