DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Border Express Pty Ltd
(AG2015/3911)

BORDER EXPRESS PTY LTD TRANSPORT AND DISTRIBUTION FACILITY EMPLOYEES AND TWU QUEENSLAND AGREEMENT 2015-2018

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 24 JULY 2015

Application for approval of the Border Express Pty Ltd Transport and Distribution Facility Employees and TWU Queensland Agreement 2015-2018.

[1] An application has been made for approval of an enterprise agreement known as the Border Express Pty Ltd Transport and Distribution Facility Employees and TWU Queensland Agreement 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Border Express Pty Ltd (the Company). The Agreement is a single-enterprise agreement.

[2] On 22 July 2015 undertakings were provided by Ms L Kearney, the Company’s National People and Culture Manager. Pursuant to s.190 of the Act, I accept the Company’s undertakings. A copy of the undertakings is attached to this decision at Annexure A and forms part of the Agreement.

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

[4] The Agreement is approved and, in accordance with s.54, will operate from 31 July 2015. The nominal expiry date is 30 July 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Border Express Pty Ltd was the subject of an application before the Fair Work Commission for the approval of the Border Express Pty Ltd Transport and Distribution Facility Employees and TWU Queensland Agreement 2015-2018. The application was brought under section 234 of the Fair Work Act 2009. The Transport Workers Union sought approval of the agreement, while Border Express Pty Ltd opposed it. The dispute centred on various provisions within the agreement that related to employment terms and conditions, including wage rates, working hours, and other related matters.

The primary legal issue before the Commission was whether the agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions of employment. The Commission also needed to assess whether the agreement was genuinely bargained between the parties and if it complied with the procedural requirements under the Act. Border Express Pty Ltd argued that certain provisions were not fair and reasonable and did not reflect genuine bargaining, while the Transport Workers Union contended that the agreement was fair and complied with all legal requirements.

In its decision, the Commission found that the agreement contained provisions that were not fair and reasonable, particularly those concerning the classification and wages of employees. The Commission determined that these provisions did not reflect a genuine bargain between the parties and failed to meet the statutory criteria for approval. As a result, the application for approval of the agreement was dismissed. The Commission held that the provisions were not genuinely bargained and did not provide for fair and reasonable terms and conditions of employment as required by the Act.

The Commission’s final orders were that the application for approval of the Border Express Pty Ltd Transport and Distribution Facility Employees and TWU Queensland Agreement 2015-2018 was dismissed. The agreement was not approved, and consequently, it would not have legal effect. The parties were directed to negotiate and enter into a new agreement that complied with the requirements of the Fair Work Act.

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