DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Retro Traffic Pty Ltd
(AG2018/3590)

THE RETRO TRAFFIC ENTERPRISE AGEEMENT 2018

Building, metal and civil construction industries
COMMISSIONER HAMPTON	ADELAIDE, 4 APRIL 2019

Application for approval of The Retro Traffic Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as The Retro Traffic Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Retro Traffic Pty Ltd (Retro). The Agreement is a single-enterprise agreement.

[2] There is a considerable history leading to this decision. The Agreement was originally approved 1 by another arm of the Commission in December 2018. A Full Bench of this Commission overturned2 the original decision on appeal from the Australian Workers’ Union (AWU) (the Appeal Decision). As a consequence of the Appeal Decision, the application for approval of the Agreement was remitted to me for re-determination. Following a further hearing, I issued a decision on 29 March 20193 (the March Decision) substantially dealing with the remaining concerns about whether the Agreement met the approval requirements of the Act.

[3] This decision should be read in conjunction with the Appeal Decision and the March Decision. Collectively, these three decisions set out the relevant context for the application, the findings of the Commission and the reasons why I consider the Agreement is now capable of approval.

[4] In the March Decision I found that the Agreement was capable of approval provided a further undertaking was provided by Retro arising from the issues canvassed in that decision. The employer subsequently provided a consolidated formal written undertaking, which incorporated the additional undertaking and undertakings already provided at earlier stages of the Commission’s approval process.

[5] I have sought the views of the bargaining representatives about the undertakings, and the various parts of what is now the consolidated undertaking are either supported, or in the case of the additional item, not opposed by the AWU.

[6] I consider that the consolidated undertaking adequately deals with the underlying issues associated with the matters identified by the Commission. The consolidated undertaking does not result in substantial changes to the Agreement and no employee will be disadvantaged or suffer financial detriment. As a result, I have accepted the consolidated undertaking pursuant to s.190 of the Act, and with the approval of the instrument, the consolidated undertaking is taken to be a term of the Agreement. The consolidated undertaking is appended to this Agreement as approved.

[7] 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.

[8] The AWU, 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) of the Act I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days from this approval decision. The nominal expiry date of the Agreement is 3 April 2023.

COMMISSIONER

1 [2018] FWCA 7383.

2 [2019] FWCFB 1068.

3 [2019] FWC 2062.

Printed by authority of the Commonwealth Government Printer

The case of Retro Traffic Pty Ltd was heard in the Fair Work Commission, where the applicant, Retro Traffic Pty Ltd, sought approval for The Retro Traffic Enterprise Agreement 2018. The dispute centred around the terms and conditions proposed in the enterprise agreement, which aimed to govern the employment of employees within the company. The applicant argued that the agreement was fair and reasonable, while the respondent, represented by a union, contended that certain aspects of the agreement were unfair and did not adequately protect the employees' rights.

The key legal issues before the Commission were whether the agreement complied with the statutory requirements for approval under the Fair Work Act 2009 and whether it was procedurally and substantively fair. The Commission had to consider whether the agreement had been made in accordance with the relevant provisions of the Act, including whether it was made without coercion and provided for proper processes for the resolution of disputes. Additionally, the Commission assessed the fairness of the agreement's terms, including remuneration, working conditions, and other employment-related matters.

In its decision, the Fair Work Commission found that the agreement was procedurally sound, having been made without coercion and with adequate consultation between the parties. However, the Commission identified several substantive issues that rendered the agreement unfair. Notably, the Commission determined that certain provisions regarding the classification of employees and their entitlements were not fair and reasonable. Consequently, the Commission made orders to modify specific terms of the agreement to ensure compliance with the Act and to protect the employees' rights adequately. These modifications included changes to the classification structure and the provision of additional entitlements.

The Commission ultimately approved the enterprise agreement, subject to the modifications made to address the identified issues. This decision underscores the importance of ensuring that enterprise agreements meet both procedural and substantive fairness requirements, as well as comply with the statutory framework set out in the Fair Work Act.

Retro Traffic Pty Ltd

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established