Abletts Transport Pty Ltd

[2016] FWCA 7155

[2016] FWCA 7155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Abletts Transport Pty Ltd
(AG2016/5063)

ABLETTS TRANSPORT ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 26 OCTOBER 2016

Application for approval of the Abletts Transport Enterprise Agreement 2016.

[1] An application has been made by Abletts Transport Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Abletts Transport Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all the employees of the applicant. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Flexibility term

[3] The Agreement incorporates the model flexibility term at reg. 2.08 of the Fair Work Regulations 2009, however, clause 23 of the Agreement, in requiring 13 weeks’ notice to be provided in order to terminate an individual flexibility arrangement is inconsistent with the much lesser notice requirement of 28 days under s.203(6)the Act.

[4] The Commission wrote to the applicant notifying of this inconsistency. In response the applicant has provided an undertaking amending clause 23.5 of the Agreement so that 28 days’ notice will be required to terminate a flexibility arrangement.

Better off overall test (BOOT)

Part time employees

[5] The Commission wrote to the applicant with the concern that Agreement appeared to allow the employer to unilaterally roster part time employees on any day of the week without the agreement of the employee. This appeared to be detrimental when compared with requirement under the Awards relevant to the application of the better off overall test, that upon commencement of employment the employer and part time employee are to agree to a regular pattern of days and hours to be worked by the employee

[6] The applicant has provided an undertaking that at the commencement of employment, part time employees and the employer will agree to the hours and days that the employee will work, and that any variation to agreed hours may be by consent.

Salaried employees

[7] The Commission wrote to the applicant with the concern that the Agreement refers to administrative employees receiving a salary rather than the hourly rates incorporated in the Agreement. As the Agreement does not contain the salaries to be paid to employees, the Commission was concerned that the Agreement may not have been genuinely agreed to by voting employees if they were not made aware of how the salaries would be calculated. Without evidence of the salaries that would apply to the relevant employees, the Commission was not able to determine if salaried employees would be better off under the Agreement.

[8] In response to the concern about genuine Agreement the applicant explained that the employees were made aware of cl. 8.9 which states that employees will be provided with a Letter of Employment prior to the commencement of employment which will advise, among other matters, the rate of pay to be paid to the employee. The applicant provided the Commission with a copy of a Letter of Employment.

[9] In relation to the question of whether salaried employees would be better off under the Agreement the applicant advised that all clerical employees have rates of pay that are in excess of the rates under the Agreement (not the Award) and that clause 8.10 guarantees that any above Agreement entitlements granted to employees shall apply for the life of the Agreement. The applicant provided the Commission with evidence of the salaries of four current clerical employees, which are above Award rates of pay.

[10] To provide certainty the applicant has provided an undertaking that the salaries of clerical employees will be calculated so that those employees will always be better off than they would be under the Clerks Private Sector Award 2010.

[11] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are overall more beneficial than under the Road Transport Distribution Award 2016, Clerks Private Sector Award 2010 and the Vehicle Manufacturing Repair Services and Retail Award 2010 (the Awards), being the relevant instruments for the purposes of the BOOT. The Agreement provides base rates of pay that are higher for all classifications than the Awards. The applicant has provided an undertaking that overtime and penalty rates are in accordance with the relevant Award rates and that the loading to be applied for casual employees will also be in accordance with the relevant Award loading.

Conclusion

[12] Taking into account the higher rates of pay under the Agreement, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[13] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 26 October 2019.

DEPUTY PRESIDENT

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Annexure A