ABC Resourcing Pty Ltd

[2022] FWCA 2390

[2022] FWCA 2390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ABC Resourcing Pty Ltd

(AG2022/2327)

ABC Resourcing Transport Employees Enterprise Agreement 2022

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 18 JULY 2022

Application for approval of the ABC Resourcing Transport Employees Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the ABC Resourcing Transport Employees Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by ABC Resourcing Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 July 2022.

1. On 14 July 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. It is noted that the Transport Workers’ Union of Australia (TWU) originally indicated that they opposed the approval of the Agreement on the basis that they believed the Applicant had failed to engage in good faith bargaining. The TWU subsequently withdrew this objection on the basis that failure to comply with good faith bargaining is not a matter that can be taken into consideration when determining whether an agreement should be approved.

1. The Applicant has submitted an undertaking in the required form dated 15 July 2022. The undertaking deals with the following topics:

·   The Applicant has inserted a National Employment Standards (NES) precedence clause.

·   The dispute resolution clause in the Agreement has been amended such that it covers disputes relating to both matters arising out of the Agreement and in relation to the NES.

·   Casual employees will be remunerated at the wage rates contained in Attachment A of the Agreement plus the appropriate casual methods of payment and casual loading as contained in the Road Transport and Distribution Award 2020 and the Road Transport Long Distance Drivers Award 2021 as relevant.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Clause 12.2.1 of the Agreement provides that employees who are unable to attend for work due to illness or injury shall, as far as practicable, advise the company of such inability to attend for work prior to the commencement of the first day of absence within one hour of the employee’s scheduled starting time. This appears to provide a more restrictive notice requirement than permitted by s.107(2)(a) of the Act.

1. The Applicant has provided an effective NES precedence undertaking, which states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 12.2.1 will not apply to the extent that it is inconsistent with the NES.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. The TWU, 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act (and despite clause 5.1), will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 24 July 2025.

COMMISSIONER

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