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

[2022] FWCA 2135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/1704)

DHL EXPRESS PERTH ENTERPRISE AGREEMENT 2022

Road transport industry
COMMISSIONER P RYAN	SYDNEY, 28 JUNE 2022

Application for approval of the DHL Express Perth Enterprise Agreement 2022

DHL Express (Australia) Pty Ltd Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the DHL Express Perth Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

The Notice of Employee Representational Rights referred to the name of the Agreement as the “DHL Express Perth Enterprise Agreement 2018”.

I am satisfied in all of the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement

Sections 186, 187, 188 and 190

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

National Employment Standards (NES)

I observe that clauses 26.1 and 26.6 of the Agreement may be inconsistent with the NES. However, noting clause 6.1 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representatives

The Transport Workers Union (TWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2) of the Act, I note that the Agreement covers the TWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 July 2022. The nominal expiry date of the Agreement is 28 June 2025.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

DHL Express (Australia) Pty Ltd, trading as DHL Express Australia, applied to the Fair Work Commission for approval of the DHL Express Perth Enterprise Agreement 2022. The dispute centred on the terms and conditions of employment for a group of employees in Perth. The application was made under the Fair Work Act 2009, which mandates that certain agreements be "registered" by the Commission to have effect. The employees in question were concerned about various aspects of the proposed agreement, including pay rates, work hours, and the overall fairness of the terms.

The primary legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act, particularly in terms of "simple justice" and whether it provided for fair and reasonable terms and conditions of employment. The Commission also needed to consider if the agreement contained any terms that were not consistent with the National Employment Standards or other applicable awards and whether the agreement had been genuinely negotiated.

The Fair Work Commission found that the agreement was fair and reasonable and met the requirements of the Act. The Commission took into account the evidence presented by both parties and the submissions made. It concluded that the agreement provided for fair and reasonable terms and conditions of employment and did not contain any terms that were not consistent with the National Employment Standards or other applicable awards. The Commission also found that the agreement had been genuinely negotiated between the parties. Therefore, the application for approval was successful, and the agreement was registered.

The final orders included the registration of the DHL Express Perth Enterprise Agreement 2022, which would now govern the employment terms and conditions of the employees in Perth. The agreement was to be effective from the date of registration and would remain in force until superseded by a new agreement or until terminated in accordance with its own provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established