Ampol Petroleum Distributors Pty Ltd

[2022] FWCA 2364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ampol Petroleum Distributors Pty Ltd

(AG2022/1882)

Ampol Petroleum Distributors Queensland Drivers’ Agreement 2022

Road transport industry
COMMISSIONER MATHESON	SYDNEY, 14 JULY 2022

Application for approval of the Ampol Petroleum Distributors Queensland Drivers’ Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Ampol Petroleum Distributors Queensland Drivers’ Agreement 2022 (Agreement). The application was made by Ampol Petroleum Distributors Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2022. The nominal expiry date of the Agreement is 14 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Ampol Petroleum Distributors Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement, the Ampol Petroleum Distributors Queensland Drivers’ Agreement 2022. The application was made under section 185 of the Fair Work Act 2009. The agreement, once approved, would cover employees of the employer in the road transport industry. The Commission was required to decide whether the application met the statutory requirements for approval of the enterprise agreement.

The main legal issue was whether the provisions of the Agreement were inconsistent with the National Employment Standards (NES), and if so, whether the more beneficial entitlements of the NES would prevail. The Commissioner noted that some provisions of the Agreement might be inconsistent with the NES. However, clause 1.2 of the Agreement provided that the more beneficial entitlements of the NES would prevail where there was an inconsistency between the Agreement and the NES. The Commissioner was satisfied that this clause would ensure the NES entitlements would be upheld where necessary.

The Commissioner also considered written undertakings provided by the employer. These undertakings were intended to address potential inconsistencies between the Agreement and the NES. The views of bargaining representatives for the Agreement were sought in relation to the undertakings and no objections were raised. The Commissioner was satisfied that accepting the undertakings was not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. Accordingly, the Commissioner accepted the undertakings under section 190(3) of the Act.

The Agreement was approved and will operate from 21 July 2022. The nominal expiry date of the Agreement is 14 July 2026. The Commissioner was satisfied that all relevant requirements of the Fair Work Act 2009 were met. The decision included the written undertakings provided by the employer as an annexure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established