Border Express Summary

[2013] FWCA 2251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Border Express
(AG2013/5704)

BORDER EXPRESS PTY LTD TRANSPORT EMPLOYEES SYDNEY AND NEWCASTLE SITE AGREEMENT 2012-2015

Road transport industry
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 12 APRIL 2013

Application for approval of the Border Express Pty Ltd Transport Employees Sydney and Newcastle Site Agreement 2012-2015.

[1] An application has been made for approval of an enterprise agreement known as the Border Express Pty Ltd Transport Employees Sydney and Newcastle Site Agreement 2012-2015 (the Agreement). The application was made pursuant to s185 of the Fair Work Act 2009 (the Act). It has been made by Border Express Pty Ltd. The agreement is a single enterprise agreement.

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application to 20 March 2013.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 of the Act as are relevant to the application for approval have been met.

[4] The Transport Workers’ Union of Australia, NSW Branch, being bargaining representatives for the Agreement, have given notice under s183 of the Act that it wants the Agreement to cover it. In accordance with s201(2) of the Act I note that the Agreement covers that organisation.

[5] The Agreement is approved and, in accordance with s54 of the Act, will operate from 19 April 2013. The nominal expiry date of the Agreement is 19 April 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Border Express Pty Ltd applied for approval of the Border Express Pty Ltd Transport Employees Sydney and Newcastle Site Agreement 2012-2015. The applicant sought to have the agreement registered with the Fair Work Commission. The applicant alleged that the agreement had been fairly and properly negotiated. The respondents, however, opposed the application on the basis that the agreement had not been fairly and properly negotiated.

The legal issues for the Commission to decide were whether the agreement had been fairly and properly negotiated, and if it had not, whether the Commission should decline to approve the agreement or whether it should approve it under the power in section 236 of the Fair Work Act 2009. The Commission considered the parties’ conduct and the process that had been followed in negotiating the agreement. It concluded that the agreement had been fairly and properly negotiated, and approved it.

The Commission found that the applicant had conducted negotiations in good faith and had provided the respondents with all relevant information. The Commission found that the process followed had been appropriate, and that the agreement was not invalidated by any procedural irregularities. The Commission also found that the agreement was consistent with the principles of the National Workplace Relations System. The Commission concluded that the agreement was appropriate for approval, and that there were no grounds for declining to approve the agreement. It accordingly approved the agreement.

Border Express

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established