Darren Pincini
[2018] FWCA 1690
•26 MARCH 2018
| [2018] FWCA 1690 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Darren Pincini
(AG2018/127)
BOOTH TRANSPORT COLLECTIVE AGREEMENT 2006
[AC303174]
Road transport industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 26 MARCH 2018 |
Termination of the Booth Transport Collective Agreement 2006.
[1] On 17 January 2018, Mr Darren Pincini applied for the termination of the Booth Transport Collective Agreement 2006 1(the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).
[2] On 24 January 2018, I directed any party who opposed the application to advise my chambers by close of business on 15 February 2018. The following parties did so:
• Mr Dean Williams, an employee of Booth Transport Pty Ltd (Booth Transport);
• Mr Glen Wooltorton, an employee of Booth Transport;
• Mr David Bone, an employee of Booth Transport;
• Mr Trevor Holland, an employee of Booth Transport;
• the Transport Workers’ Union of Australia (TWU), the employee organisation covered by the Agreement;
• Mr Shane Wakefield, an employee of Booth Transport;
• Mr Steven Trenorden, an employee of Booth Transport; and
• Mr Wayne Oates, an employee of Booth Transport. Mr Oates attached to his email to my chambers a document that appears to have been signed by 17 other employees of Booth Transport, also opposing Mr Pincini’s application.
[3] On 12 February 2018, Mr Mitchell Booth emailed my chambers advising that Booth Transport neither supported nor opposed Mr Pincini’s application.
[4] I listed this application for mention on 16 February 2018. Shortly before the listed time, Ms Cassidy Guyett emailed my chambers on behalf of the TWU advising that the union no longer opposed the application, and instead intended to file submissions in support of terminating the Agreement.
[5] At the mention, the parties and I agreed that the application would be determined ‘on the papers’, without an attendance hearing. I then issued directions for the filing of written submissions.
[6] The following parties filed written submissions in accordance with my directions:
• Mr Pincini;
• the TWU;
• Mr Wooltorton;
• Mr Wakefield; and
• Mr Oates.
[7] Mr Williams telephoned my chambers to make a further submission, as he said he did not have an email address.
The legislation
[8] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the FW Act.
[9] Section 226 of the FW Act states:
‘226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.’
Consideration
[10] The applicant and the TWU submitted that the Agreement should be terminated because several of its provisions are inferior to those in the Road Transport and Distribution Award 2010 2and the Road Transport (Long Distance Award) 2010,3 which are the awards that cover the employees to whom the Agreement applies, and would therefore apply if the Agreement were terminated. They gave the following examples of the disadvantages employees experience under the Agreement:
• a lack of rostered days off (RDOs) for ‘the majority of’ employees covered by the Agreement; 4
• cl 9.3 of the Agreement provides that the base wage rates in the Agreement will increase by the Consumer Price Index (CPI) on the first anniversary of its commencement, rather than in line with increases ordered in the Fair Work Commission’s annual wage reviews;
• the wage rates in cls 9.1, 9.2 and 9.4.1 of the Agreement are ‘well below’ the corresponding award rates; 5
cl 9.4.3 of the Agreement does not provide the same ‘safeguards’ for part-time employees who performing long-distance driving work as those in the recent determination varying the Road Transport (Long Distance Award) 2010;
• in particular, the Agreement prescribes a minimum payment of four hours’ work for part-time and casual employees, whereas the Road Transport (Long Distance Award) 2010 provides these employees with a minimum payment for eight hours’ work and 500 km respectively;
• cl 9.7 of the Agreement excludes ‘opening or closing tautliner curtains and installing and removing gates’ from the definition of ‘loading or unloading’ and therefore excludes payment at loading and unloading rates for time spent performing those tasks, whereas the definition of this term in cl 3.1 of the Road Transport (Long Distance Award) 2010 does not have these exclusions;
• cl 9.10 of the Agreement provides for two-up driving arrangements in which two drivers travel together and share the work during a journey, each receiving 75% of the rate of pay for a single driver, whereas such arrangements do not exist under the Road Transport (Long Distance Award) 2010; and
• the allowance rates in the Agreement are below those in the relevant awards.
[11] Mr Pincini further submitted that it was detrimental to employees that cl 23.3.1 of the Agreement states that annual leave loading is not payable on termination. However, a term in an enterprise agreement or agreement-based transitional instrument is not enforceable to the extent that it is inconsistent with the National Employment Standards. 6 In this case, cl 23.3.1 of the Agreement (‘… leave loading is not payable on pro-rata annual leave entitlements when they are paid out at the end of the employee’s employment’) is inconsistent with s.90(2) of the FW Act, which states:
‘90 Payment for annual leave
…
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.’ 7
[12] Some of the parties who opposed this application did not file any submissions. The submissions that I did receive were brief.
[13] Mr Wooltorton and Mr Wakefield simply stated that the Agreement was better than the award that would otherwise apply to them, but did not explain why they thought this.
[14] Mr Oates stated that he did not agree with the ‘grievances’ that Mr Pincini had raised in support of his application, that these should be investigated as a private matter between Mr Pincini and Booth Transport rather than being resolved via termination of the Agreement and that an ‘upgraded’ enterprise agreement should subsequently be negotiated.
[15] Mr Williams stated that the reason he did not want the Agreement to be terminated was that the Agreement required the employer to provide wage increases in line with the CPI, while the award did not.
Whether termination is not contrary to the public interest: s.226(a)
[16] There were no submissions expressly addressing whether the termination was or was not in the public interest. I have reviewed the terms of the Agreement myself and tend to agree with the applicant and the TWU that the Agreement is significantly less beneficial to employees than the awards that would otherwise apply. Further, the Agreement nominally expired in 2008. 8 These factors weigh in favour of a finding that termination is not contrary to the public interest.
The views of the parties covered by the Agreement: s.226(b)(i)
[17] The applicant and the TWU support the termination of the Agreement, and the employer neither supports nor opposes it.
[18] I have taken into account the fact that several employees covered by the Agreement oppose its termination. However, there was very little information before me about the basis of their opposition. Further, to the extent that employees set out their reasons for concern, it appears those concerns would not actually be affected either way. That is, they would neither be worsened by the termination of the Agreement nor allayed if the Agreement were not terminated.
[19] As set out above, Mr Oates indicated he did not agree with Mr Pincini’s reasons for applying to terminate the Agreement. However, he did not explain why this was. He then said that Mr Pincini’s ‘grievances’ should be separately investigated and resolved. Given that Mr Pincini advised in the mention on 16 February 2018 that he no longer works for Booth Transport, this is unlikely to occur. In any case, the chances of this occurring would not be affected either way by the termination of the Agreement.
[20] I also note that Mr Oates is sympathetic to the prospect of making a new enterprise agreement to replace the Agreement. Given that the employer does not have a view on the termination of the Agreement, it is not clear that the termination would either encourage or deter the making of a new enterprise agreement.
[21] Separately, it appears that Mr Williams’ submission is based on a misunderstanding of cl 9.3 of the Agreement. That clause only requires the employer to increase the wage rates in the Agreement by the CPI once, on the first anniversary of the Agreement’s commencement (i.e. in 2007). There is nothing in the Agreement itself that requires the employer to keep doing this every year thereafter.
[22] There is no evidence before me about what employees covered by the Agreement currently get paid. It may well be that the employer has a private arrangement with its employees to increase their wages by the CPI every year. However, even if that arrangement exists, it is not mandated by the Agreement. Terminating the Agreement of itself would therefore have no effect on such an arrangement; it could remain in place even if the Agreement were terminated. Mr Williams’ submission is therefore misguided.
The circumstances of the parties covered by the Agreement, including the likely effect termination will have on them: s.226(b)(ii)
[23] Since the applicant no longer works for Booth Transport, terminating the Agreement would have no effect on him.
[24] None of the other parties to the Agreement – that is, the employer, the TWU, and the other employees – provided specific submissions on their circumstances or the likely effect the termination of the Agreement would have on them.
[25] I infer from the fact that the employer does not oppose the termination that it would not be adversely affected if the Agreement were terminated.
[26] I infer that the employees who have opposed Mr Pincini’s application have done so because they think that if the Agreement is terminated, their wages or other entitlements will decrease. However, there is no evidence that this would occur. On the contrary, the awards that would apply if the Agreement were terminated are more beneficial in several respects. As set out above, terminating the Agreement would not of itself affect any separate wage arrangements that the employer and its employees may have that are more generous than the Agreement or relevant awards.
Conclusion
[27] Having considered, and being satisfied as to each of the matters contained in s.226 of the FW Act, I terminate the Agreement. The termination will come into effect from the date of this decision.
SENIOR DEPUTY PRESIDENT
Written submissions:
Transport Workers’ Union of Australia: 2 March 2018.
Darren Pincini: 5 March 2018.
Glen Wooltorton: 13 March 2018.
Shane Wakefield: 13 March 2018.
Wayne Oates: 15 March 2018.
1 AC303174.
2 MA000038.
3 MA000039.
4 Clauses 23.8 and 23.9 of the Agreement respectively provide for the ‘banking’ of rostered days off for long distance drivers and the preservation of rostered day off arrangements at Booth Transport’s Victorian depots for existing employees. Presumably, therefore, this submission relates to the lack of rostered days off for employees who either are not long distance drivers or were not employed at Booth Transport’s Victorian depots at the time the Agreement was made.
5 I note, however, that because of s.206 of the Fair Work Act 2009 (Cth), the base rate of pay in the Agreement must not be less than the corresponding award rate, and if it is, the award rate must be paid.
6 Fair Work Act 2009 (Cth) ss.55, 56.
7 See Centennial Northern Mining Services Pty Ltd v CFMEU (No 2) [2015] FCA 136, upheld on appeal in Centennial Northern Mining Services Pty Ltd v CFMEU [2015] FCAFC 100.
8 Booth Transport Collective Agreement 2006 [AC303174] cl 5.1.
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