Autocare Services Pty Ltd

[2017] FWCA 4167

[2017] FWCA 4167

FAIR WORK COMMISSION

DECISION

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

Autocare Services Pty Ltd
(AG2017/2448)

AUTOCARE SERVICES (TRANSPORT NEW SOUTH WALES) ENTERPRISE AGREEMENT 2017

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 AUGUST 2017

Application for approval of the Autocare Services (Transport New South Wales) Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Autocare Services Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as Autocare Services (Transport New South Wales) Enterprise Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia – New South Wales Branch (the ‘Union’) and Messrs Wall, Smith and Cochrane, nominated employee bargaining representatives (EBRs). The Agreement covers 51 employees who are principally allocated out of the New South Wales Transport office and who are engaged to perform car carrying duties specified in Schedule 4 of the Agreement. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 1 February 2017, and voting for the Agreement’s approval took place from 3-9 June 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 29 of the 46 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 June 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Huynh, IR/ER Advisor identified the Road Transport and Distribution Award 2010 [MA000038] and the Road Transport (Long Distance Operations) Award 2010 [MA000039] (the ‘Awards’) as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Huynhsaid the Agreement provided for a number of more beneficial terms when compared with the reference instruments, including higher rates of pay (of between 6-39%), an annual phone allowance, enhanced redundancy provisions and parental leave. The agreement contains no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at schedule 1 and cl 22 respectively, and a disputes resolution procedure at schedule 2 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 August 2017, Ms K Huynh appeared for the applicant and Mr L Lawler appeared for the Union. Ms Huynh outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Autocare Services (Transport New South Wales) Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 14 August 2017 and have a nominal expiry date of 30 June 2020.

DEPUTY PRESIDENT

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