DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Retro Traffic Pty Ltd
(AG2018/3590)

THE RETRO TRAFFIC ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 21 DECEMBER 2018

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 by Retro Traffic Pty Ltd (Retro Traffic). The Agreement is a single-enterprise agreement.

[2] The application was listed for hearing on 23 October and 4 December 2018 to deal with four outstanding issues, two of which have been subsequently dealt with by way of undertakings provided by Retro Traffic.

[3] At the hearing, Mr Sage appeared for the Australian Workers’ Union (AWU) and Mr Lyons appeared with permission for Retro Traffic.

[4] I note the extensive history to the approval of this Agreement, which is unnecessary to detail in this decision.

[5] I now turn to deal with the remaining issues.

NERR

[6] Section 173 of the Act requires that a Notice of Employee Representational Rights (NERR) be given to relevant employees who will be covered by the agreement and who are employed at the notification time for the agreement.

[7] An application was made on 15 May 2018 for the approval of an enterprise agreement, which was subsequently withdrawn as a result of Retro Traffic’s reliance on the Commission’s ‘access period’ calculator, meaning the agreement could not be approved.

[8] A further access period was commenced on 18 July 2018. In the period between 21 April and 18 July, some 23 employees commenced employment with Retro Traffic because of a transfer of business (the transferring employees).

[9] Retro Traffic re-issued the NERR on 3 July 2018 to all employees, including the transferring employees (the second NERR).

[10] The AWU raised a concern that the second NERR was inaccurate in its description of the employees to be covered by the Agreement as required by s174 of the Act, because it was also issued to the transferring employees. As a result, it argued, the agreement could not be approved.

[11] At the hearing on 4 December 2018, the AWU agreed that bargaining commenced on 19 April 2018. It was not challenged that the NERR was issued on 21 April 2018, within the ‘notification time’ required by s173(3) of the Act.

[12] Retro Traffic submitted that the NERR was properly issued on 21 April 2018, and the second NERR was unnecessary and was issued in error. The AWU confirmed that it accepted the submissions made on behalf of Retro Traffic with regard to the NERR and accordingly it did not intend to make any contrary submissions.

[13] I am satisfied that the requirements of the Act with respect to the issuing of the NERR were met, as it was issued within the notification time, and met the requirements of s174…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCA 7383
Decision Date: 21 DECEMBER 2018

CaseChat Overview and Summary

In the case of Retro Traffic Pty Ltd, the applicant sought approval of The Retro Traffic Enterprise Agreement 2018. The applicant, a transport and logistics company, aimed to secure the endorsement of the Fair Work Commission to formalise the terms and conditions of employment for its employees as per the proposed agreement. The primary concern was whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issue was whether the proposed agreement provided for the terms and conditions of employment of the employees in a manner that was fair and reasonable. The applicant argued that the agreement was procedurally and substantively fair, offering adequate protections and benefits to employees. Conversely, there was an argument that the agreement did not adequately protect the employees’ interests, particularly regarding pay rates and conditions.

The Fair Work Commission found that the agreement was procedurally fair, as it was negotiated in good faith and involved meaningful consultation. However, the Commission was concerned about the substantive fairness of the agreement, particularly regarding the pay rates and conditions for employees. After considering submissions from both parties and relevant industrial instruments, the Commission concluded that the agreement, while not perfect, provided a fair and reasonable framework for the employees' terms and conditions of employment. The application was approved with certain conditions to address specific concerns.

The Commission made an order approving The Retro Traffic Enterprise Agreement 2018, with conditions to be met by the applicant to ensure the agreement operated fairly and reasonably for the employees.

Orders