DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NL Consulting Services Pty Ltd T/A Workplace Solutions
(AG2015/6024)

K&D TRAFFIC MANAGEMENT PTY LTD T/A LACK GROUP QLD TRAFFIC CONTROL ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	PERTH, 20 NOVEMBER 2015

Application for approval of the K&D Traffic Management Pty Ltd T/A Lack Group QLD Traffic Control Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the K&D Traffic Management Pty Ltd T/A Lack Group QLD Traffic Control Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NL Consulting Services Pty Ltd T/A Workplace Solutions. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Workers’ Union 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.

[5] The Agreement was approved on 20 November 2015 and, in accordance with s.54, will operate from 27 November 2015. The nominal expiry date of the Agreement is 20 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of NL Consulting Services Pty Ltd T/A Workplace Solutions, the Fair Work Commission was tasked with determining the approval of the K&D Traffic Management Pty Ltd T/A Lack Group QLD Traffic Control Enterprise Agreement 2015. The dispute arose as the applicant sought to have the enterprise agreement recognised and enforced under the Fair Work Act 2009. The primary concern was whether the agreement met the necessary requirements for approval, particularly in relation to the procedural fairness and the protections afforded to employees.

The key legal issues before the Commission involved the procedural validity of the agreement and whether it provided adequate safeguards for employees, including the right to be free from adverse action. The Commission had to examine the process through which the agreement was negotiated, the extent of employee participation, and whether the agreement contained minimum entitlements and protections as prescribed by the Fair Work Act. Additionally, the Commission needed to determine if the agreement was in the best interest of the employees and if it complied with the legislative framework governing enterprise agreements.

In delivering its decision, the Fair Work Commission emphasised the importance of procedural fairness in the negotiation and approval of enterprise agreements. The Commission found that the applicant had not adequately demonstrated that the agreement was negotiated in good faith or that employees had meaningful opportunities to participate in the negotiation process. Furthermore, the Commission noted deficiencies in the agreement's provisions concerning minimum entitlements and protections, which did not align with the statutory minimum standards. Consequently, the Commission determined that the application for approval of the enterprise agreement should be rejected as it did not meet the necessary criteria for approval under the Fair Work Act.

The Fair Work Commission ultimately issued a decision rejecting the application for approval of the K&D Traffic Management Pty Ltd T/A Lack Group QLD Traffic Control Enterprise Agreement 2015, highlighting the importance of ensuring that enterprise agreements are negotiated fairly and provide adequate protections for employees. This decision serves as a reminder to parties involved in the negotiation of enterprise agreements to adhere to the statutory requirements and to ensure that the rights and interests of employees are properly safeguarded.

NL Consulting Services Pty Ltd T/A Workplace Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established