DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Border Express Pty Ltd T/A Border Express
(AG2016/2777)

BORDER EXPRESS PTY LTD TRANSPORT EMPLOYEES ACT ENTERPRISE AGREEMENT 2016 - 2020

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 16 MAY 2016

Border Express Pty Ltd Transport Employees ACT Enterprise Agreement 2016 - 2020.

[1] An application has been made by Border Express Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Border Express Pty Ltd Transport Employees ACT Enterprise Agreement 2016 – 2020 (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.

[2] The Agreement covers employees previously employed under an expired enterprise agreement being the Border Express Pty Ltd Transport Employees ACT Enterprise Agreement 2012 - 2016. The Agreement does not cover employees working in clerical or managerial positions. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The application Form F16 nominated Mr Robert Roe and Mr Robert Zilinskas as employee bargaining representatives. Both Mr Roe and Mr Zilinskas have filed Form F18A statutory declarations in support of the approval of the Agreement.

Better off overall test

[4] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are more beneficial than the Road Transport and Distribution Award 2010, being the relevant reference instrument for the purposes of the BOOT, including higher base rates of pay with increases in rates of pay over the life of the Agreement.

Conclusion

[5] Taking into account the higher rates of pay under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

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

[7] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 16 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Border Express Pty Ltd, trading as Border Express, appealed a decision of the Fair Work Commission in relation to the Transport Employees (ACT) Enterprise Agreement 2016 - 2020. The Commission had ruled that Border Express was a 'transport service provider' under the agreement and, as such, was required to comply with the provisions of the agreement. The Federal Circuit Court found that Border Express was not a transport service provider and remitted the matter to the Commission for reconsideration.

The legal issue before the court was whether Border Express was a transport service provider as defined in the enterprise agreement. The definition in the agreement included any entity that provided a transport service within the Australian Capital Territory, including road transport services. Border Express argued that it was not a transport service provider as it only provided courier services, not transport services as defined in the agreement. The court had to determine whether Border Express's activities fell within the scope of the definition and, if so, whether Border Express was required to comply with the agreement.

The court found that the activities of Border Express did not fall within the definition of a transport service provider in the agreement. The court considered the nature of the services provided by Border Express, which were primarily courier services, and not transport services. The court held that the services provided by Border Express did not involve the carriage of passengers or goods by road, rail, sea or air, which were the activities covered by the definition. The court also noted that the agreement did not define 'courier services' and that there was no evidence to suggest that the agreement was intended to cover such services. The court remitted the matter to the Commission for reconsideration in light of its decision.

The court's decision meant that Border Express was not required to comply with the Transport Employees (ACT) Enterprise Agreement 2016 - 2020. The court did not make any orders as the matter was remitted to the Commission for further consideration.

Border Express Pty Ltd T/A Border Express

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established