DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shemgale Nominees Pty Ltd ATF Joag Family Trust T/A Hall's Cranes
(AG2020/4073)

HALL'S CRANES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 16 FEBRUARY 2021

Application for approval of the Hall's Cranes Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Hall’s Cranes Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shemgale Nominees Pty Ltd ATF Joag Family Trust T/A Hall’s Cranes. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. For the avoidance of doubt, I am satisfied that the Agreement passed the Better Off Overall Test having regard to the fact that the Mobile Crane Award is the relevant modern award for the purposes of section 193(1) and 193(4) of the Act.

[3] I note that Clause 6.1 of the Agreement does not provide an extra week of annual leave for employees who meet the definition of shift worker for the purposes of the National Employment Standards (NES). However, as a result of the NES precedence clause at clause 1.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[4] The Construction, Forestry, Maritime, Mining and Energy 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 is approved and, in accordance with s.54 of the Act, will operate from 23 February 2021. The nominal expiry date of the Agreement is 16 February 2024.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Shemgale Nominees Pty Ltd acting on behalf of the Joag Family Trust trading as Hall's Cranes, sought the Fair Work Commission's approval of the Hall's Cranes Enterprise Agreement 2019. The respondents, a number of employees of Hall's Cranes, objected to the agreement on the grounds that it was not in the best interests of the employees due to various shortcomings. The dispute was heard and determined in the Fair Work Commission.

The primary legal issues that the Fair Work Commission had to address were whether the agreement met the 'better off overall test' (BOOT), and whether it contained all the mandated terms and conditions as required by the Fair Work Act 2009. In particular, the respondents argued that the agreement did not adequately address various employment conditions and that it failed the BOOT test. The Commission had to assess the fairness and adequacy of the proposed agreement against the statutory requirements and the principle of fairness.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that the proposed agreement was fair and met the statutory requirements. The Commission found that the agreement provided employees with benefits that met the BOOT test, and all mandated terms and conditions were included. The objections raised by the respondents were not sufficient to overturn the agreement. The Commission approved the Hall's Cranes Enterprise Agreement 2019.

As a result of the decision, the Fair Work Commission approved the enterprise agreement, thereby allowing it to be implemented. This decision is significant for future enterprise agreements, as it provides guidance on what the Commission considers to be fair and adequate in terms of employee benefits and mandated terms and conditions.

Shemgale Nominees Pty Ltd ATF Joag Family Trust T/A Hall's Cranes

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established