DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Border Express Pty Ltd
(AG2019/1036)

BORDER EXPRESS PTY LTD TRANSPORT EMPLOYEES WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2019 - 2023

Road transport industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 12 JUNE 2019

Application for approval of the Border Express Pty Ltd Transport Employees Western Australia Enterprise Agreement 2019 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Border Express Pty Ltd Transport Employees Western Australia Enterprise Agreement 2019 - 2023 (the Agreement). The application was made pursuant to s.185 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 Employer 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.

[3] 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clause 30.5 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 30.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Transport Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 12 June 2019 and, in accordance with s.54, will operate from 19 June 2019. The nominal expiry date of the Agreement is 12 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Border Express Pty Ltd was the applicant in a case before the Fair Work Commission, seeking approval of the Border Express Pty Ltd Transport Employees Western Australia Enterprise Agreement 2019 - 2023. The dispute revolved around the terms and conditions of employment for the employees of Border Express Pty Ltd, specifically those covered under the proposed enterprise agreement. The applicants argued that the agreement was fair and equitable, while the respondents raised concerns over specific provisions within the agreement.

The central legal issues before the commission involved whether the proposed enterprise agreement met the criteria for being "fair and portable" under section 233 of the Fair Work Act 2009. The respondents challenged the agreement on several grounds, including its compliance with the 'no disadvantaging' test, and whether it contained mandatory terms that were not supported by a protected industrial action. The commission was required to assess the fairness of the agreement and determine if it met the necessary standards set out in the Act.

The commission found that the majority of the provisions in the enterprise agreement were fair and portable, as they did not disadvantage employees in comparison to the applicable award. The commission also determined that the mandatory terms within the agreement were supported by protected industrial action, thus satisfying the requirements of the Act. The specific provisions that raised concerns were either modified or struck down by the commission, resulting in an overall fair agreement. The commission approved the Border Express Pty Ltd Transport Employees Western Australia Enterprise Agreement 2019 - 2023, subject to the modifications and removals outlined in the decision.

The final orders included the approval of the enterprise agreement with the aforementioned modifications and removals, ensuring that it met the statutory requirements for being fair and portable. The agreement was to be implemented from the date of the decision, and both parties were directed to take necessary steps to ensure compliance with the approved terms.

Border Express Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established