Hills Tankers Pty Ltd Summary

[2022] FWCA 3714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hills Tankers Pty Ltd

(AG2022/4174)

Hills Tankers Pty Ltd – Transport Workers Union NSW Enterprise Agreement 2022

Road transport industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 24 OCTOBER 2022

Application for approval of the Hills Tankers Pty Ltd - Transport Workers Union NSW Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Hills Tankers Pty Ltd - Transport Workers Union NSW Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

Pursuant to subsection 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 31 October 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission heard an application from Hills Tankers Pty Ltd for approval of the Hills Tankers Pty Ltd - Transport Workers Union NSW Enterprise Agreement 2022. The Transport Workers Union NSW represented the employees of Hills Tankers Pty Ltd, a company involved in the transportation of petroleum products. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, including whether it provided for fair and reasonable terms and conditions of employment.

The primary legal issue before the Commission was whether the agreement provided for fair and reasonable terms and conditions of employment. This involved assessing whether the agreement met the "better off overall test" and whether it included all the mandatory terms required by the Fair Work Act 2009. The Commission also needed to consider whether the agreement had been made in accordance with the procedural requirements of the Act, including whether the union had genuinely bargained on behalf of the employees.

In its decision, the Commission found that the agreement did not meet the better off overall test, as it contained provisions that would have resulted in some employees being worse off than under the relevant award. Additionally, the Commission found that the agreement did not include all the mandatory terms required by the Fair Work Act 2009. The Commission also found that the agreement had not been made in accordance with the procedural requirements of the Act, as the union had not genuinely bargained on behalf of the employees. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the Hills Tankers Pty Ltd - Transport Workers Union NSW Enterprise Agreement 2022, finding that it did not meet the statutory requirements for approval under the Fair Work Act 2009. The Commission found that the agreement did not provide for fair and reasonable terms and conditions of employment, did not include all the mandatory terms required by the Act, and had not been made in accordance with the procedural requirements of the Act. The Commission's decision highlights the importance of ensuring that enterprise agreements meet the statutory requirements for approval and that unions genuinely bargain on behalf of employees.

Hills Tankers Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established