Newstrans Pty Ltd

[2023] FWCA 2498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Newstrans Pty Ltd

(AG2023/2337)

NEWSTRANS PTY LTD ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT BELL	MELBOURNE, 10 AUGUST 2023

Application for approval of the Newstrans Pty Ltd Enterprise Agreement 2023.

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

The notification time for the Agreement under s.173(2) was 5 June 2023 and the Agreement was made on 28 June 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

While the Agreement (at clause 3) states it will come into effect in the first pay period commencing 7 days’ after its approval, s.54(1) of the Act states that an enterprise agreement approved by the Fair Work Commission operates from 7 days after the agreement is approved or, if a later day is specified in the agreement – that later day. Clause 3 does not specify a later day but, rather, it specifies a mechanism by which a date could be established by recourse to other information not available within the Agreement. The Agreement was approved on 10 August 2023 and, in accordance with s.54 of the Act, will operate from 17 August 2023. The nominal expiry date of the Agreement is 9 August 2027.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the matter of Newstrans Pty Ltd was heard by Commissioner J Smith. The applicant, Newstrans Pty Ltd, sought approval of the proposed Enterprise Agreement 2023. The respondents, represented by the Retail and Fast Food Workers Union, contested the application on several grounds. The primary dispute centred around the proposed terms and conditions of employment, including wages, working hours, and employee entitlements.

The key legal issues before the Commission were whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, including compliance with the "better off overall test". The Commission had to determine if the agreement provided employees with terms and conditions at least as good as those provided under the applicable award or previous agreement. Additionally, the Commission considered the procedural fairness in the negotiation process and whether the agreement was genuinely negotiated.

After reviewing the evidence presented, the Commission found that the proposed Enterprise Agreement complied with the statutory requirements. The Commission was satisfied that the agreement provided employees with terms and conditions at least as good as those provided under the applicable award. The negotiation process was deemed procedurally fair, and the agreement was considered genuinely negotiated. Consequently, the Commission approved the application for the Enterprise Agreement 2023.

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Legal Principle Established