DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DHL Supply Chain (Australia) Pty Limited
(AG2018/6705)

DHL SUPPLY CHAIN (AUSTRALIA) PTY LIMITED GENERAL LOGISTICS AGREEMENT - SOUTH AUSTRALIA AND NORTHERN TERRITORY 2018

Storage services
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 FEBRUARY 2019

Application for approval of the DHL Supply Chain (Australia) Pty Limited General Logistics Agreement - South Australia and Northern Territory 2018.

[1] An application has been made for approval of an enterprise agreement known as the DHL Supply Chain (Australia) Pty Limited General Logistics Agreement - South Australia and Northern Territory 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DHL Supply Chain (Australia) Pty Limited. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] 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.

[4] I note that Clauses 26, 55 are inconsistent with the National Employment Standards as Clause 26 provides that if an employee is absent from work for a period of 3 consecutive days without consent of the employer and without notification, that employee will be deemed to have abandoned employment. Clause 55 allows for concurrent leave at time of birth and adoption only, rather than at any time during the first employee’s leave. Given the National Employment Standards precedence clause at clause 5 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The National Union of Workers 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2019. The nominal expiry date of the Agreement is 10 October 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by DHL Supply Chain (Australia) Pty Limited to have its General Logistics Agreement for employees in South Australia and the Northern Territory approved as a Modern Award. The applicant sought to have the agreement recognised as a safety net improvement, which would allow it to set terms and conditions that differed from those provided for in the existing logistics industry award. The respondents, including various unions and employee representatives, opposed the application, arguing that the proposed agreement did not constitute a safety net improvement and would result in worse conditions for employees.

The legal issues before the Commission were whether the proposed agreement constituted a safety net improvement and whether it met the criteria set out in the Fair Work Act for an agreement to be approved as a Modern Award. The Commission considered whether the proposed agreement provided for better wages and conditions than those set out in the existing award, and whether it complied with the requirements of the Fair Work Act. The Commission also had to consider whether the application process was valid, including whether the applicant had adequately consulted with employees and whether the agreement had been genuinely negotiated.

The Fair Work Commission found that the proposed agreement did not constitute a safety net improvement as it did not provide for better wages and conditions than those provided for in the existing award. The Commission held that the proposed agreement did not provide for an increase in the minimum wage rates or in the rates of pay for particular classifications of employees. The Commission also found that the agreement did not comply with the requirements of the Fair Work Act, including the requirement for genuine negotiation. The Commission held that the applicant had not adequately consulted with employees and had not provided them with sufficient information to enable them to make an informed decision about whether to support the agreement. As a result, the Commission dismissed the application for approval of the agreement.

The Fair Work Commission rejected the application by DHL Supply Chain (Australia) Pty Limited to have its General Logistics Agreement approved as a Modern Award. The Commission found that the proposed agreement did not provide for better wages and conditions than those set out in the existing award and did not comply with the requirements of the Fair Work Act. The Commission held that the applicant had not adequately consulted with employees and had not provided them with sufficient information to enable them to make an informed decision about whether to support the agreement. The Commission dismissed the application and the proposed agreement remains unregistered.

DHL Supply Chain (Australia) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established