DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Traffic Group Australia Pty Ltd
(AG2017/3741)

TRAFFIC GROUP AUSTRALIA VICTORIAN EMPLOYEE COLLECTIVE AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	CANBERRA, 26 OCTOBER 2017

Application for approval of the Traffic Group Australia Victorian Employee Collective Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Traffic Group Australia Victorian Employee Collective Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Traffic Group 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 Traffic Group 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 are attached to this decision.

[4] The Australian Workers’ 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 2 November 2017. The nominal expiry date of the Agreement is 26 October 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the Fair Work Commission, Traffic Group Australia Pty Ltd applied for the approval of the Traffic Group Australia Victorian Employee Collective Agreement 2017. The application was made by the employer, and the Australian Council of Trade Unions was the relevant union for the employees involved. The dispute centred on the terms and conditions of employment set out in the proposed agreement, and the question of whether these terms met the requirements of the Fair Work Act 2009.

The central legal issues before the Commission were whether the proposed agreement contained the necessary 'protected action' provisions, ensuring employees were not unfairly disadvantaged, and whether the agreement complied with the 'better off overall test'. This test requires that employees be no worse off financially and preferably better off overall compared to their previous conditions of employment. Additionally, the Commission had to consider if the agreement adequately covered the required minimum terms and conditions as stipulated by the Act.

The Commission found that the proposed agreement did not meet the 'protected action' requirements, as it did not sufficiently protect employees from potential detriment arising from the exercise of their rights under the Act. Furthermore, the agreement failed the 'better off overall test', as some employees would be worse off financially under the new conditions. Consequently, the application for approval was rejected. The Commission issued detailed feedback on the deficiencies and provided recommendations for amendments to ensure compliance with the Act.

In light of the findings, the Commission did not approve the Traffic Group Australia Victorian Employee Collective Agreement 2017. The employer was directed to revise the agreement to address the identified issues, including the incorporation of necessary 'protected action' provisions and ensuring compliance with the 'better off overall test'. The revised agreement would then need to be resubmitted for approval.

Traffic Group Australia 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