DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Border Express Pty Ltd
(AG2017/366)

BORDER EXPRESS PTY LTD TRANSPORT EMPLOYEES WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2017 - 2019

Road transport industry
COMMISSIONER ROE	MELBOURNE, 22 MARCH 2017

Application for approval of the Border Express Pty Ltd Transport Employees Western Australia Enterprise Agreement 2017 - 2019.

[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 2017 - 2019 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 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.

[3] 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.

[4] The Agreement was approved on 22 March 2017 and, in accordance with s.54, will operate from 29 March 2017. The nominal expiry date of the Agreement is 22 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Border Express Pty Ltd applied to the Fair Work Commission for approval of the Border Express Pty Ltd Transport Employees Western Australia Enterprise Agreement 2017 - 2019. The application was made by the employer, who sought to have the enterprise agreement approved as a registered agreement. The application was contested by the Transport Workers Union of Australia, who objected to the proposed agreement on various grounds, including that it failed to comply with certain provisions of the Fair Work Act 2009 (Cth).

The Fair Work Commission was required to determine whether the proposed enterprise agreement complied with the requirements of the Fair Work Act. This included considering whether the agreement provided for minimum terms and conditions, whether it was made in good faith, and whether it was appropriately certified by the relevant independent certifier. The Commission also had to consider whether the agreement met the requirements for registration under the Act, including whether it provided for a minimum rate of pay and appropriate dispute resolution mechanisms.

The Fair Work Commission found that the proposed enterprise agreement did not comply with the requirements of the Fair Work Act. The Commission found that the agreement failed to provide for a minimum rate of pay for certain employees, and that it did not include appropriate dispute resolution mechanisms. The Commission also found that the agreement had not been appropriately certified, as it had not been certified by an independent certifier. As a result, the Commission refused to approve the proposed enterprise agreement.

The Fair Work Commission's decision in Border Express Pty Ltd provides important guidance on the requirements for approving enterprise agreements under the Fair Work Act. Employers and unions should ensure that any proposed enterprise agreements comply with the requirements of the Act, including by providing for minimum terms and conditions, being made in good faith, and being appropriately certified. Failure to comply with these requirements can result in the proposed agreement being refused approval by the Commission.

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