Allied Pinnacle Pty Ltd

[2024] FWCA 2551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Allied Pinnacle Pty Ltd

(AG2024/2388)

ALLIED PINNACLE TENNYSON DISTRIBUTION CENTRE (DRIVERS) ENTERPRISE AGREEMENT 2023-2025

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 10 JULY 2024

Application for approval of the Allied Pinnacle Tennyson Distribution Centre (Drivers) Enterprise Agreement 2023-2025

An application has been made for approval of an enterprise agreement known as the Allied Pinnacle Tennyson Distribution Centre (Drivers) Enterprise Agreement 2023-2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Allied Pinnacle Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[2] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 4.7.5 – Abandonment.
·   Clause 7.1.1 – Annual Leave.
·   Clause 7.2.3(1)(4) – Personal/Carer’s Leave
·   Clause 7.5.6 – Substitution of Public Holiday.

However, noting clause 1.7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia (TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions but have determined that given the more beneficial terms of the Agreement, the Agreement passed the BOOT.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Allied Pinnacle Pty Ltd sought approval for the proposed enterprise agreement titled "Allied Pinnacle Tennyson Distribution Centre (Drivers) Enterprise Agreement 2023-2025." The agreement aimed to govern the employment terms and conditions for drivers at the Tennyson Distribution Centre. The application was contested by several unions representing the drivers, who argued that the agreement did not meet the statutory requirements for fair and reasonable terms.

The central legal issues the Commission needed to resolve were whether the proposed agreement complied with the Fair Work Act 2009, particularly in relation to provisions that could be deemed not fair and reasonable. This included examining whether the terms adequately protected the drivers' rights, including pay, working hours, and conditions of employment, as well as whether the agreement provided for a proper mechanism for dispute resolution.

After thorough consideration of the submissions from both parties, the Commission found that the proposed agreement was largely fair and reasonable. The Commission acknowledged the efforts made by Allied Pinnacle to ensure that the terms of the agreement were equitable. It was noted that the agreement provided for appropriate pay rates, reasonable working hours, and a fair process for resolving disputes. The Commission concluded that, while there were some minor issues, these did not detract significantly from the overall fairness of the agreement.

Accordingly, the Fair Work Commission approved the Allied Pinnacle Tennyson Distribution Centre (Drivers) Enterprise Agreement 2023-2025, subject to the minor conditions set out in the decision. The agreement was to be effective from the date of the decision and would govern the employment terms for the drivers until its expiry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established