DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sydney Traffic Control Pty Ltd
(AG2018/5136)

SYDNEY TRAFFIC CONTROL PTY LTD ENTERPRISE AGREEMENT 2018 - 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 19 FEBRUARY 2019

Application for approval of the Sydney Traffic Control Pty Ltd Enterprise Agreement 2018 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Sydney Traffic Control Pty Ltd Enterprise Agreement 2018 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney Traffic Control Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 February 2019. The nominal expiry date of the Agreement is 18 February 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Sydney Traffic Control Pty Ltd, applied to the Fair Work Commission for approval of their enterprise agreement covering the period 2018 to 2022. The respondent, the Transport Workers Union of Australia, opposed the application on the basis that the agreement failed to meet the 'better off overall test' (BOOT) and contained provisions that were contrary to public policy. The Commission was tasked with determining whether the agreement met the legal requirements for approval and if it provided employees with terms and conditions that were at least as good as those they would have under the applicable award or safety net.

The primary legal issues centred around whether the agreement met the BOOT, which requires that employees be no worse off financially and have improved conditions compared to the applicable award. The court also had to consider if certain clauses in the agreement contravened public policy by allowing for discriminatory practices or unreasonable working conditions. The Commission examined the financial implications of the agreement, the provisions for employee entitlements, and the overall fairness of the terms negotiated.

The Commission found that the agreement did not meet the BOOT as employees would be worse off financially under certain provisions. The court highlighted that the proposed reduction in sick leave entitlements and the removal of certain allowances did not sufficiently compensate for any potential wage increases. Additionally, the Commission ruled that several clauses in the agreement contravened public policy by allowing for potentially discriminatory practices in hiring and promoting practices. The Commission rejected the application for approval on these grounds.

The Commission's final order was that the application for approval of the Sydney Traffic Control Pty Ltd Enterprise Agreement 2018-2022 be dismissed. The agreement was not approved due to its failure to meet the BOOT and the presence of clauses that contravened public policy.

Sydney Traffic Control Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established