Coogee Chemicals Pty Ltd

[2014] FWCA 7762

[2014] FWCA 7762

FAIR WORK COMMISSION

DECISION

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

Coogee Chemicals Pty Ltd
(AG2014/7893)

COOGEE CHEMICALS QUEENSLAND DRIVERS AGREEMENT 2014

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 31 OCTOBER 2014

Application for approval of the Coogee Chemicals Queensland Drivers Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Coogee Chemicals Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Coogee Chemicals Queensland Drivers Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 18 employees who are employed as Heavy Duty Vehicle Drivers within the Queensland operations of the applicant. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 26 May 2014, and voting for the Agreement’s approval took place between 24 September and 7 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 8 of the 12 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 October 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr C White, Human Resource Advisor, identified the Road Transport (Long Distance Operations) Award 2010 [MA000039] and the Road Transport and Distribution Award 2010 [MA000038] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Whitesaid that the Agreement provided for one term that was less beneficial than under the reference instruments, in that the Agreement mandated a 40 hour working week, rather than a 38 hour working week. The Agreement provides for a higher, ‘loaded’ base rate of pay which takes into account applicable allowances, overtime and annual leave loading. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 25 and 24 respectively, and a disputes resolution procedure at clause 27 provides for conciliation by the Commission.

[4] At a hearing of the application on 27 October 2014, Mr C White appeared for the applicant and Ms M Cerrato for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr White outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that rates of pay are to be increased in accordance with the all-groups Queensland Consumer Price Index, however, such rises cannot be less than 3% or more than 4%. However, the Union had sought an undertaking in relation to the definition of ‘Shift Worker’ under the Agreement, which Mr White agreed to provide. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Ms Cerrato otherwise suggested the Commission approve the decision.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187,188, 190, 192 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Coogee Chemicals Queensland Drivers Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 3 November 2014 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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