Boom Logistics Ltd T/A Boom Logistics

[2021] FWCA 191

[2021] FWCA 191

FAIR WORK COMMISSION

DECISION

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

Boom Logistics Ltd T/A Boom Logistics
(AG2020/3797)

BOOM LOGISTICS QUEENSLAND MECHANICAL, DRIVERS & WORKSHOP PERSONNEL - 2020 -2023

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 JANUARY 2021

Application for approval of the Boom Logistics Queensland Mechanical, Drivers & Workshop Personnel – 2020-2023.

[1] Boom Logistics Ltd T/A Boom Logistics (the Employer) has applied for approval of an enterprise agreement known as the Boom Logistics Queensland Mechanical, Drivers & Workshop Personnel – 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives for the Agreement regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. I did not receive any correspondence to my chambers from any of the employee bargaining representatives.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I note that the Agreement contains provisions which likely to be inconsistent with the National Employment Standards (NES): 

•  Personal/carer’s leave (notice) - Clause 27.3;

•  Personal/carer’s leave (casuals) - Clause 27.8;

•  Compassionate leave - Clause 28;

•  Public holiday (other gazetted days) - Clause 30.2;

•  Public holidays (casuals) – Clause 30;

•  Public holiday (reasonableness) – Clause 30;

•  Termination - Clause 14.2.

[5] However, noting the NES precedence undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] I note that in reviewing the Agreement, it was identified that the Notice of Employee Representational Rights (the NERR) was derived from an older version of the form set out in the Fair Work Regulations 2009 (the Regulations), and did not include the name of the Respondent. I sought submissions from the Employer regarding the NERR and these were provided on 11 January 2021. Having considered the NERR, I am satisfied that these deficiencies constitute minor procedural or technical errors for the purposes of s.188(2) of the Act, and that the Agreement would have been genuinely agreed to within the meaning of s.188)(1) of the Act but for these deficiencies.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 January 2021. The nominal expiry date of the Agreement is 29 January 2024 in accordance with clause 4.2 of the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE510109  PR726187>

Annexure A.