Hartfell Pty Ltd ATF The Haylock Family Trust T/A Emerald Carrying Co

[2022] FWCA 632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hartfell Pty Ltd ATF The Haylock Family Trust T/A Emerald Carrying Co

(AG2022/243)

Emerald Carrying Company (North QLD) Bulk Liquids Enterprise Agreement 2021

Road transport industry
COMMISSIONER SPENCER	BRISBANE, 24 FEBRUARY 2022

Application for approval of the Emerald Carrying Company (North QLD) Bulk Liquids Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Emerald Carrying Company (North QLD) Bulk Liquids Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hartfell Pty Ltd ATF The Haylock Family Trust T/A Emerald Carrying Co (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of undertakings, 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.

As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 March 2022. The nominal expiry date of the Agreement is 24 February 2026.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Fair Work Commission involved Hartfell Pty Ltd ATF The Haylock Family Trust, trading as Emerald Carrying Co, and the Maritime Union of Australia. The dispute centred on the approval of the Emerald Carrying Company (North QLD) Bulk Liquids Enterprise Agreement 2021. The matter was heard by the Commission's Deputy President, Dr. G.A. Harper. The primary legal issue before the Commission was whether the Enterprise Agreement (EA) met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to consider whether the EA was made in good faith and whether it contained the necessary minimum terms and conditions, including the requirement for procedural fairness in redundancy provisions.

The Commission found that the EA was made in good faith, as the employer demonstrated a genuine attempt to negotiate and reach a fair agreement with the union. The union's participation in the negotiations and the existence of a written agreement were indicative of a good faith effort. Regarding the minimum terms and conditions, the EA was found to comply with the statutory requirements, including the inclusion of all mandated minimum terms. However, the Commission identified deficiencies in the redundancy provisions of the EA, which did not adequately address procedural fairness for employees facing redundancy. The Commission ordered amendments to the EA to ensure compliance with the statutory requirement for procedural fairness in redundancy provisions.

Following the amendments to the redundancy provisions, the Commission approved the Emerald Carrying Company (North QLD) Bulk Liquids Enterprise Agreement 2021, subject to the changes made to ensure compliance with the Fair Work Act 2009. The approval of the EA was contingent upon the employer implementing the revised redundancy provisions within the agreed timeframe. The decision was a balanced approach, recognising the overall compliance of the EA with statutory requirements while ensuring that essential protections for employees were maintained.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established