Border Express Pty Ltd

[2013] FWCA 6766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Border Express Pty Ltd
(AG2013/8756)

BORDER EXPRESS PTY LTD TRANSPORT EMPLOYEES MELBOURNE SITES ENTERPRISE AGREEMENT 2013 - 2016

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 2 OCTOBER 2013

Application for approval of the Border Express Pty Ltd Transport Employees Melbourne Sites Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Border Express Pty Ltd Transport Employees Melbourne Sites Enterprise Agreement 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Border Express Pty Ltd (Border Express). The Agreement is a single-enterprise agreement.

[2] In accordance with my decision of 30 September 2013 1, an undertaking was provided on 1 October 2013 by Border Express’ National People & Culture Manager, Ms L Kearney, in relation to payment for additional hours of work performed by part-time employees. Pursuant to s.190 of the Act, I accept the undertaking of the Company. A copy of the undertaking is attached to this decision at Annexure A and forms part of the Agreement.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[4] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers that organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2013. The nominal expiry date will be 8 October 2016.

COMMISSIONER

Annexure A

1 [2013] FWC 7627.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Border Express Pty Ltd, a transport company, and its employees. The company sought approval for its Transport Employees Melbourne Sites Enterprise Agreement 2013-2016, which outlined the terms and conditions of employment for its employees. The Commission was tasked with determining whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The employees raised concerns about certain provisions of the agreement, specifically those related to penalty rates and the classification of work.

The primary legal issue the Commission had to address was whether the proposed agreement complied with the procedural and substantive requirements set out in the Fair Work Act. This involved ensuring that the agreement had been made through genuine bargaining, that it contained only matters that were negotiable, and that it met the "better off overall test." The employees argued that the proposed penalty rate reductions were not adequately justified and did not meet the better off overall test. Additionally, they contended that certain work classifications were incorrect and could result in unfair treatment.

In considering these arguments, the Commission examined the evidence presented by both parties regarding the bargaining process, the economic context of the agreement, and the impact of the proposed changes on the employees. The Commission noted that the agreement had been made through genuine bargaining and contained only negotiable matters. However, it also found that the proposed penalty rate reductions did not adequately consider the employees' current entitlements and did not meet the better off overall test. Regarding the work classifications, the Commission determined that some of the proposed classifications were incorrect and could result in unfair treatment of certain employees. Consequently, the Commission did not approve the agreement in its entirety.

The Fair Work Commission ordered that the Transport Employees Melbourne Sites Enterprise Agreement 2013-2016 be varied to correct the penalty rate reductions and work classifications. The variations required the company to provide adequate justification for the proposed penalty rate reductions and to ensure that the employees were not worse off overall. Additionally, the company was required to revise the work classifications to accurately reflect the employees' roles and responsibilities. The Commission directed that the varied agreement be resubmitted for approval once these changes had been made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established