Ampol Petroleum Distributors Pty Ltd T/A Ampol Petroleum Distributors

[2024] FWCA 870

[2024] FWCA 870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ampol Petroleum Distributors Pty Ltd T/A Ampol Petroleum Distributors

(AG2024/383)

AMPOL PETROLEUM DISTRIBUTORS WESTERN AUSTRALIA DRIVERS’ AGREEMENT 2024

Road transport industry
COMMISSIONER LIM	PERTH, 13 MARCH 2024

Application for approval of the Ampol Petroleum Distributors Western Australia Drivers’ Agreement 2024

1. Ampol Petroleum Distributors Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Ampol Petroleum Distributors Western Australia Drivers’ Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 7 March 2023.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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. I note that the following clauses appear to be inconsistent with the National Employment Standards (NES);

·   Clause 12.21 states if the employee fails to give notice the Employer has the right to withhold monies equivalent to the amount of notice not shown due to the employee. However, this may reduce an employee’s NES entitlement payable on termination.

· Clause 12.2 of the Agreement appears to state that if an employee is absent for a period of 3 days without the consent of the Company and without notification to the Company shall be evidence that the employee has abandoned their employment. The Clause also states the termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the Company, whichever is later. This appears to be inconsistent with the NES at s 117 of the Act.

· Clause 9.9(e) states that when an employee is absent on a working day immediately before or after a public holiday without reasonable excuse or consent, they will not be entitled to payment for the public holiday. This appears more restrictive than s 116 of the Act.

· Clause 12.3(c) of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment however the provision is not subject to an application under s 120 of the Act.

1. However, I am satisfied that under clause 1.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers Union (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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 13 March 2024 and, in accordance with s 54, will operate from 20 March 2024.  The nominal expiry date of the Agreement is 13 March 2028.

COMMISSIONER

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ANNEXURE A