DHL Supply Chain (Australia) Pty Ltd

[2021] FWCA 6484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DHL Supply Chain (Australia) Pty Ltd
(AG2021/7611)

DHL SUPPLY CHAIN MULTI-PURPOSE - NSW ENTERPRISE AGREEMENT 2021

Storage services
COMMISSIONER LEE	MELBOURNE, 29 OCTOBER 2021

Application for approval of the DHL Supply Chain Multi-Purpose - NSW Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the DHL Supply Chain Multi-Purpose - NSW Enterprise Agreement 2021 (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 Ltd. 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. The undertakings are taken to be a term of 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] The United Workers’ Union 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 27 – Public Holidays.

• Clause 36.1(a) – Personal (Sick) Leave.

• Clause 37 – Carer’s Leave.

• Clause 38(iii) – Compassionate Leave.

However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November 2021. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved DHL Supply Chain (Australia) Pty Ltd and its employees. The dispute centred around the application for approval of the DHL Supply Chain Multi-Purpose - NSW Enterprise Agreement 2021. This agreement was intended to replace the existing Multi-Purpose - NSW Enterprise Agreement 2016. The application was made by the employer under section 234 of the Fair Work Act 2009, seeking the Commission's approval of the new agreement as a modern award.

The legal issues that the Commission had to address included whether the agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions, and if it was made in good faith. Additionally, the Commission considered the balance of rights and obligations, and whether the agreement complied with the "better off overall test" as well as other relevant legislative provisions.

The Fair Work Commission examined the agreement's provisions in detail, taking into account submissions from both parties. The Commission noted that the new agreement included changes to various terms and conditions of employment, including wages, hours of work, and other employment benefits. After considering the evidence and arguments presented, the Commission concluded that the agreement did meet the statutory criteria for approval. The Commission found that the agreement provided for fair and reasonable terms and conditions, and that it was made in good faith. The Commission also found that the agreement satisfied the better off overall test.

The Fair Work Commission approved the DHL Supply Chain Multi-Purpose - NSW Enterprise Agreement 2021 as a modern award. The new agreement came into effect on the first day of the first calendar month after the Commission's decision was published, thereby replacing the previous agreement. This outcome ensured that the terms and conditions of employment for the affected employees were updated in accordance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established