DGL (Aust) Pty Ltd

[2013] FWCA 3089

[2013] FWCA 3089

FAIR WORK COMMISSION

DECISION

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

DGL (Aust) Pty Ltd
(AG2013/1118)

DGL (AUST) PTY LTD ENTERPRISE AGREEMENT (WETHERILL PARK WAREHOUSE-DRIVERS) 2013 - 2016

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 MAY 2013

Application for approval of the DGL (Aust) Pty Ltd Enterprise Agreement (Wetherill Park Warehouse-Drivers) 2013 - 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by DGL (Aust) 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 DGL (Aust) Pty Ltd Enterprise Agreement 2013 - 2016 (the ‘Agreement’). The Agreement was negotiated with a Bargaining Representative appointed from within the employee group, Mr L Olley. The Agreement is to cover 9 employees who are engaged in the transport and distribution of customer products from the applicant’s premises in Wetherill Park, New South Wales, except for salaried staff. 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 28 January 2013, and voting for the Agreement’s approval took place on 21 April 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all of the 8 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Wolfenden, NSW Warehouse and Distribution Manageridentified the Road Transport and Distribution Award 2010 [MA000038] (the ‘Modern Award’) and the Transport Industry (State) Award [AN120594] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Wolfendensaid that the Agreement provides for some terms and conditions that are less beneficial than the reference instruments, including the removal of a crib break entitlement and a dangerous goods allowance. However, the Agreement also provides for terms and conditions that are more beneficial than, or in excess of those provided for under the reference instruments, including rates of pay that are between 23.59% and 36.61% higher than those under the Award. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at Appendices 2 and 3 respectively, and a disputes resolution procedure at clause 7, which reflects clause 10 of the Modern Award, provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 16 May 2013, Mr P Ryan,appeared for the applicant with Mr R Wolfenden. Mr L Olley also appeared in his capacity as bargainng representative. Mr Ryan 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 cl 6 of the Agreement had been drafted so as to have the effect that where the Agreement is silent, the terms of the Modern Award or the National Employment Standards prevail. While the Agreement does not expressly refer to penalty rates, hours of work, rostered days off or leave entitlements, the terms of the Modern Award in relation to those entitlements apply. Mr Ryan also conceded that cl 4, which purports to provide in part that the Agreement is operative from 26 April 2013, is of no legal effect to the extent that it is inconsistent with s 54 of the Act. Additionally, cl 18 of the Agreement, which purports to provide that the terms and conditions of the Agreement are confidential between the parties is of no legal effect to the extent that it is inconsistent with s 601(4)(b) of the Act. Mr Olley supported the Agreement’s approval and the submission that the employees were better off under the Agreement.

[5] Having heard the applicant’s 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the DGL (Aust) Pty Ltd Enterprise Agreement (Wetherill Park Warehouse-Drivers) 2013 - 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 23 May 2013 and have a nominal expiry date of 26 April 2016.

DEPUTY PRESIDENT

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