DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tox Free Australia Pty Ltd
(AG2015/2204)

TOX FREE AUSTRALIA PTY LTD- LTD DARWIN - SITE ENTERPRISE AGREEMENT 2015 -2018

Waste management industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 29 APRIL 2015

Application for approval of the Tox Free Australia Pty Ltd- Ltd Darwin - Site Enterprise Agreement 2015 -2018.

[1] An application has been made for approval of an enterprise agreement known as the Tox Free Australia Pty Ltd- Ltd Darwin - Site Enterprise Agreement 2015-2018. (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tox Free Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Tox Free Australia Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision.

[4] The Transport Workers’ Union of Australia 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 6 May 2015. The nominal expiry date of the Agreement is 28 April 2018.

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Tox Free Australia Pty Ltd seeking approval of the Tox Free Australia Pty Ltd Darwin Site Enterprise Agreement 2015-2018. The applicant, an employer, and the Australian Manufacturing Workers’ Union, representing employees, were unable to reach an agreement on the terms of the proposed enterprise agreement. The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues before the court involved determining whether the agreement satisfied the requirements of the Fair Work Act, including whether it was free from any unfair content, and whether it met the better off overall test (BOOT). The court had to assess the proposed agreement’s provisions, particularly those relating to wages, conditions, and other employment terms, to ensure they were fair and reasonable. The court also had to consider whether the agreement provided employees with a benefit that was better than their previous conditions.

In reaching its decision, the Fair Work Commission examined the proposed agreement clause by clause. It found that the majority of the provisions were fair and met the requirements of the Act. However, certain clauses were identified as potentially unfair, particularly those that related to the calculation of penalty rates and the reduction of some employee entitlements. After considering submissions from both parties, the Commission determined that, despite these concerns, the overall agreement provided a benefit to the employees and was therefore approved. The Commission made orders approving the Tox Free Australia Pty Ltd Darwin Site Enterprise Agreement 2015-2018 with specified conditions and amendments to address the identified unfair provisions.

Tox Free Australia Pty Ltd

DECISION

ANNEXURE A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established