DHL Express (Australia) Pty Limited T/A DHL Express Australia

[2022] FWCA 1595

[2022] FWCA 1595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DHL Express (Australia) Pty Limited T/A DHL Express Australia

(AG2022/1269)

DHL Express Queensland & Northern Territory Enterprise Agreement 2022

Road transport industry
COMMISSIONER HUNT	BRISBANE, 12 MAY 2022

Application for approval of the DHL Express Queensland & Northern Territory Enterprise Agreement 2022

1. DHL Express (Australia) Pty Limited T/A DHL Express Australia (the Employer) has applied for approval of an enterprise agreement known as the DHL Express Queensland & Northern Territory Enterprise Agreement 2022 (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.

1. The Fair Work Commission (the Commission) raised a concern with the Employer regarding the Notice of Employee Representational Rights (NERR) issued in the course of making the Agreement with employees. The concern was as follows:

“The NERR provided to employees nominates the scope as: 

(The DHL Express Queensland and Northern Territory Enterprise Agreement 2018)

Further, the NERR provides that the proposed agreement will cover employees in Brisbane, Gold Coast, Cairns and Darwin.  The Form F17 at question 4 nominates only Brisbane, Cairns and Darwin.

The Commissioner seeks further information on these issues.”

1. In response, the Employer provided an amended F17 declaration to include the Gold Coast in response to item 4, which had been omitted in error.

1. The Employer also provided submissions as to the incorrect name of the proposed enterprise agreement named in the NERR, referencing 2018. 

2. Section 188(2) of the Act states the following:

   “(2)  An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

   (a)the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

   (b)the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

3. I have had regard to the response provided by the Employer. I am satisfied that employees covered by the Agreement were not likely to have been disadvantaged by the error. I am satisfied that it is appropriate to exercise the discretion in s.188(2) of the Act to find that the Agreement was genuinely agreed to by the employees covered by the Agreement.

1. I have taken into consideration the material filed in the Commission. I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.  The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2022.  The nominal expiry date of the Agreement is 19 May 2025.

COMMISSIONER

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<AE515953  PR741549>