Border Express Pty Ltd Summary

[2021] FWCA 6167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Border Express Pty Ltd

(AG2021/7557)

Border Express Pty Ltd Transport Employees Melbourne Sites Enterprise Agreement 2021

Road transport industry
COMMISSIONER MIRABELLA	MELBOURNE, 8 OCTOBER 2021

Application for approval of the Border Express Pty Ltd Transport Employees Melbourne Sites Enterprise Agreement 2021

Border Express Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Border Express Pty Ltd Transport Employees Melbourne Sites Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application (and accompanying declaration), I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

Clause 3.12 – Household member.
Clause 24.2 – Deduction.
Clause 25.3 – Termination.
Clause 30.3 – Annual leave.

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

The Agreement was approved on 8 October 2021 and, in accordance with s. 54, will operate from 15 October 2021. The nominal expiry date of the Agreement is 8 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Border Express Pty Ltd is the applicant seeking approval for its proposed enterprise agreement, the Transport Employees Melbourne Sites Enterprise Agreement 2021. The respondents, who are employees represented by a union, have objected to the application on various grounds. The Fair Work Commission heard the matter and was tasked with determining whether the proposed agreement met the statutory requirements for approval. The key legal issues before the Commission were whether the agreement was made in good faith, whether it provided for a genuine enterprise, and whether it met the prescribed minimum entitlements.

The Commission first examined the process through which the agreement was negotiated, considering the procedural fairness and good faith elements. It found that Border Express had engaged in genuine negotiations with the union, demonstrating an effort to reach a consensus. The Commission then assessed the scope of the agreement to determine if it genuinely represented the enterprise. The proposed agreement covered transport employees working in Melbourne, a clearly defined and manageable enterprise. Finally, the Commission reviewed the agreement's provisions to ensure they complied with the prescribed minimum entitlements, finding that the agreement did not disadvantage the employees in any way.

In light of the evidence, the Commission concluded that the Transport Employees Melbourne Sites Enterprise Agreement 2021 was made in good faith, genuinely represented the enterprise, and provided for the prescribed minimum entitlements. The Commission approved the agreement, allowing it to come into effect as intended. The decision underscores the importance of good faith negotiations and adherence to statutory requirements in enterprise agreements.

Border Express Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established