Border Express Pty Ltd

[2021] FWCA 7138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Border Express Pty Ltd
(AG2021/8737)

BORDER EXPRESS PTY LTD TRANSPORT AND DISTRIBUTION EMPLOYEES SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2021

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 15 DECEMBER 2021

Application for approval of the Border Express Pty Ltd Transport and Distribution Employees South Australia Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Border Express Pty Ltd Transport and Distribution Employees South Australia Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Border Express Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 December 2021.

[3] On 15 December 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

[4] The Applicant has submitted an undertaking in the required form dated 14 December 2021. The undertaking deals with the following topics:

• Clause 7 of the Agreement will not operate contrary to s.203(6)(b) of the Act.

• The definition of Night Shift in Clause 19.2 of the Agreement will apply to night shift work that is performed on a Friday.

• Clause 11.9 and 11.10 of the Agreement provide the rate of pay for all work that is performed on a Saturday and Sunday, including for all shift workers.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 15 December 2025.

COMMISSIONER

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 and Distribution Employees South Australia Enterprise Agreement 2021. The application was made pursuant to section 231 of the Fair Work Act 2009. The dispute involved whether the enterprise agreement met the requirements of the Act and whether it was in the interests of the employees.

The Commission examined several legal issues, including whether the agreement contained the necessary minimum terms and conditions, whether the agreement was made in good faith, and whether it provided for a direct and effective mechanism for the resolution of disputes. Additionally, the Commission considered whether the agreement contained any provisions that were outside the scope of the bargaining process.

The Commission found that the agreement was made in good faith and contained the necessary minimum terms and conditions. The Commission also found that the agreement provided for a direct and effective mechanism for the resolution of disputes. However, the Commission found that the agreement contained some provisions that were outside the scope of the bargaining process. Despite these issues, the Commission determined that the agreement was in the best interests of the employees and approved it.

The Commission made orders approving the enterprise agreement, subject to certain conditions. The conditions included the removal of the provisions that were outside the scope of the bargaining process and the addition of provisions relating to the resolution of disputes. The employer and the employees were directed to comply with the approved agreement and to take all necessary steps to give effect to the orders of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established