Boom Logistics Ltd T/A Boom Logistics

[2021] FWCA 2834

[2021] FWCA 2834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boom Logistics Ltd T/A Boom Logistics
(AG2021/5132)

BOOM LOGISTICS LTD SOUTH AUSTRALIAN TRAVEL TOWER OPERATORS ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 18 MAY 2021

Application for approval of the Boom Logistics Ltd South Australian Travel Tower Operators Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Boom Logistics Ltd South Australian Travel Tower Operators Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Boom Logistics Ltd T/A Boom Logistics (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 18 May 2021 and was determined on the papers.

[3] There are five National Employment Standards (NES) issues that require comment.

[4] Clause 13.2 of the Agreement provides that the employer may terminate an employee’s employment without notice if they do not declare a licence cancellation or suspension within 24 hours. Section 123 of the Act provides that the period of notice requirement in the Act does not apply where an employee’s employment is terminated for serious misconduct. Clause 5.3 of the Agreement is a NES precedence clause and provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 13.2 will not apply to the extent that it is inconsistent with s.123 of the Act.

[5] Clause 22.5 proves that nothing in the clause affects the employer’s right to dismiss an employee without notice for serious misconduct or where it would otherwise be unreasonable to continue with the employee’s employment during the notice period. This appears to allow the employer to terminate without notice in broader circumstances than provided for in s.123 of the Act. As a result of the NES precedence clause, clause 22.5 will not apply to the extent that it is inconsistent with s.123 of the Act.

[6] Clause 28.1(c) requires employees to give notice of absence on personal leave prior to the commencement of the absence. This is inconsistent with s.107 of the Act, which requires employees to provide notice as soon as practicable, which may include a time after the leave has started. As a result of the NES precedence clause, employees will be required to provide notice of personal leave as soon as practicable, which may include a time after the leave has started.

[7] Clause 28.1(h) provides that employees are entitled to two days of unpaid carer’s leave if they exhaust their allotted allowance. As a result of the NES precedence clause, an employee will be entitled to 2 days of unpaid carer’s leave on each permissible occasion, as considered in s.102 of the Act.

[8] Clause 29.1 provides that employees are entitled to two days of paid compassionate leave. As a result of the NES precedence clause, an employee will be entitled to 2 days of compassionate leave on each permissible occasion, as considered in s.104 of the Act.

[9] The “Construction, Forestry, Maritime, Mining and Energy Union” (CFMMEU) 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) of the Act I note that the Agreement covers this organisation.

[10] 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.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 12 October 2023.

COMMISSIONER

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