[2015] FWCA 530

The attached document replaces the document previously issued with the above code on 20 January 2015.

A new paragraph [3] is inserted.

Rachel Wong

Associate to Commissioner Roberts

Dated 20 January 2015

[2015] FWCA 530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KF & MJ Hendy Pty Ltd
(AG2014/8399)

HENDY TRANSPORT ENTERPRISE AGREEMENT 2014

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 20 JANUARY 2015

Application for approval of the Hendy Transport Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Hendy Transport Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by KF & MJ Hendy Pty Ltd (the Company). The agreement is a single-enterprise agreement.

[2] On 9 January 2015 undertakings were provided by Mr R Hendy (Company Director) in relation to clause 7.4 (Casual employees), clause 11 (Public Holiday, Saturday and Sunday work) and clause 14.4 (Rates of Pay - Casual employees) of the Agreement. Pursuant to s.190 of the Act, I accept the Company’s undertakings. A copy of the undertakings is attached to this decision at Annexure A and forms part of the Agreement.

[3] In accordance with clauses 25 and 26 of the Agreement, the model flexibility and consultation terms are taken to be terms of the Agreement.

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

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 January 2015. The nominal expiry date of the Agreement is 19 January 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of KF & MJ Hendy Pty Ltd, the matter before the Fair Work Commission involved an application for the approval of the Hendy Transport Enterprise Agreement 2014. The applicant, KF & MJ Hendy Pty Ltd, sought the commission’s approval for the proposed agreement which aimed to govern the employment terms and conditions of the employees within the transport sector. The respondents, who included various unions and employee representatives, contested certain provisions of the agreement, arguing they were not fair and reasonable in the context of the applicable statutory standards.

The legal issues before the commission centred on whether the provisions of the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the court was required to determine if the agreement met the requirements for 'genuine agreement' and if it adhered to the 'better off overall test'. The unions and employee representatives contended that several aspects of the proposed agreement, such as the reduction in certain benefits and changes to working arrangements, did not meet the statutory standards for fairness and reasonableness.

The commission carefully reviewed the submissions from both parties and conducted an analysis based on the statutory framework. The commission found that while some provisions of the agreement were contentious, the overall package provided to the employees was fair and reasonable. The commission noted that the agreement offered a number of benefits to employees, including competitive wages and some enhanced conditions, which met the better off overall test. Consequently, the commission approved the application, finding that the agreement was fair and met the necessary legal standards.

The final orders of the commission were that the Hendy Transport Enterprise Agreement 2014 be approved as it stood, with no amendments required. The agreement would now be binding on the parties and enforceable under the Fair Work Act. The unions and employee representatives were granted leave to appeal the decision, ensuring that the matter could be further reviewed if necessary.

KF & MJ Hendy 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