DHL Express (Australia) Pty Limited t/a DHL Express Australia

[2020] FWCA 4361

[2020] FWCA 4361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DHL Express (Australia) Pty Limited t/a DHL Express Australia
(AG2020/1741)

DHL EXPRESS NSW COURIER ENTERPRISE AGREEMENT 2020

Road transport industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 19 AUGUST 2020

Application for approval of the DHL Express NSW Courier Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the DHL Express NSW Courier Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by DHL Express (Australia) Pty Limited (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 17 August 2020. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Road Transport and Distribution Award 2010), and that the undertakings will not result in substantial changes to the Agreement.

[3] The evidence in this matter identifies that, whilst all relevant employees received a copy of the Notice of Employee Representational Rights (NERR), four relevant employees were not issued with a copy of the NERR at least 14 days prior to the commencement of the access period.

[4] Having regard to the fact that 32 of 34 employees voted to approve the Agreement, and that the delay was in large part due to employees being on leave, I have determined that the error is a “minor procedural error”, and that employees were not disadvantaged by the error. In doing so I have had regard to the detailed submissions of the Applicant on this issue, which are supported by the Transport Workers’ Union (TWU) (as employee bargaining representative). I thus confirm that I have no issues as to my satisfaction as to the Agreement being genuinely agreed (c.f. s.188(2) of the Act) in accordance with the requirements of the Act (i.e. by reference to any non-compliance with ss.181(2) and/or 188(1)(a)(ii) of the Act).

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[7] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The TWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 August 2020. The nominal expiry date of the Agreement is 26 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A