DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain
[2011] FWA 6863
•6 OCTOBER 2011
[2011] FWA 6863 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain
(AG2011/10369)
Storage services
COMMISSIONER CAMBRIDGE | SYDNEY, 6 OCTOBER 2011 |
Application for approval of an enterprise agreement - contested coverage of agreement - bargaining representative status challenged - eligibility rule of organisation considered.
[1] This Decision is made further to the Interim Decision issued in this matter on 14 July 2011, [PR511593] which provided for approval of an enterprise agreement known as the DHL Supply Chain (Australia) Pty. Limited Enterprise Agreement - New South Wales 2011 (the Agreement). The Interim Decision confirmed that the employer covered by the Agreement is DHL Supply Chain (Australia) Pty Ltd,(DHL), and the National Union of Workers, New South Wales Branch (NUWN) is an employee organisation covered by the Agreement.
[2] The Agreement was approved by way of Interim Decision so as to provide for an opportunity to have Fair Work Australia (FWA) hear and determine a contest as to whether the Agreement covered the Transport Workers’ Union of Australia (TWU), without having that issue delay the approval of the Agreement. Consequently this Decision is confined to the issue of whether or not the Agreement covers the TWU.
[3] On 5 July 2011, the TWU gave notice to FWA pursuant to s.183 of the Fair Work Act 2009 (the Act), that it wanted the Agreement to cover it. DHL and the NUWN have opposed the TWU being covered by the Agreement. Section 183 of the Act is in the following terms:
“183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give FWA a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to FWA, and a copy given to each employer covered by the enterprise agreement, before FWA approves the agreement.
Note: FWA must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).”[Emphasis added]
[4] On 21 and 22 September 2011 FWA conducted a Hearing to deal with the contested coverage issue, at which time the following appearances were recorded:
Mr O Fagir appeared for the TWU; and,
Mr M Seck, barrister, together with Mr J Corlett, solicitor, appeared for DHL; and
Mr A Joseph, barrister, together with Mr S Mueller appeared for the NUWN.
[5] During the Hearing on 21 and 22 September, the TWU provided evidence from three witnesses, namely:
Mr Lester Isadoro Denetto, who is employed by DHL in the classification of Storeperson;
Mr Thomas Arnold Snell, who was a previous employee of DHL; and
Mr Michael Ian Aird, who is a senior official of the TWU.
[6] DHL called Mr Graham Charles Watts the General Manager of Healthcare consumer operations, who provided evidence as a witness. The NUWN did not seek to adduce evidence but made submissions in opposition to the TWU being covered by the Agreement.
The Basis for Objection to the TWU being Covered by the Agreement
[7] The objection raised against the TWU being covered by the Agreement centres upon subsection (3) of s.176 of the Act. Section 176 of the Act is in the following terms:
“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation
(2) If:
(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and
(b) an employee organisation applied for the authorisation; and
(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;
the organisation is taken to be a bargaining representative of such an employee unless:
(d) the employee is a member of another employee organisation that also applied for the authorisation; or
(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or
(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).
Requirement relating to employee organisations
(3) Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).” [Emphasis added]
[8] As is obvious from the combined operation of s.183 and subsection 176(3), an employee organisation, in this case the TWU, cannot be covered by the Agreement unless it was a bargaining representative for the Agreement (s.183), and it cannot be a bargaining representative unless it is entitled to represent the industrial interests of the employee in relation to work that will be performed under the Agreement (subsection 176(3)).
[9] Consequently the objection raised by DHL and the NUWN asserted that the TWU was not a bargaining representative for the Agreement and could therefore not be covered by it. In order to rebut this assertion the TWU would need to prove that it had at least one member who would be covered by the Agreement and that it was entitled to represent the industrial interests of that employee of DHL.
[10] There appeared to be an implied acceptance by the parties that there was, at first instance, an onus upon the TWU to prove that it met the requirements to be a bargaining representative for the Agreement. In essence this primary onus would seem to be satisfied if evidence confirmed that the TWU had at least one member who would be covered by the Agreement and that the nature of the work performed by that person (or persons) was work which permitted eligibility for membership of the TWU.
[11] Further, the parties appeared to accept that if the TWU discharged this primary evidentiary onus, the objection taken by DHL and the NUWN would then involve a transfer of onus so as to require DHL and the NUWN to establish that the work performed by the member(s) of the TWU was not work comprehended by the eligibility rule of the TWU and consequently that person or persons were not eligible for membership of the TWU.
The Case Advanced by the TWU
[12] The TWU provided unchallenged witness evidence that it had at least two members who would be covered by the Agreement. Although one of these members, a Mr Kevin Wiki was apparently unable to give evidence as a witness, his membership of the TWU was confirmed by the unchallenged evidence provided by Mr Aird.
[13] Mr Denetto provided evidence about the nature of the work that he performed as an employee covered by the Agreement and classified in the position of Storeperson. Mr Snell worked for DHL from 2004 until August 2010 and he gave evidence about the work that he performed during that time. Mr Aird gave evidence about his knowledge of the nature of the business operation conducted by the DHL. Mr Aird also gave evidence about the involvement of the TWU with various other companies who operated in the Transport and Logistics industries.
[14] In summary, the submissions made by Mr Fagir for the TWU asserted that the evidence that had been provided should lead to a conclusion that the work performed by confirmed members of the TWU employed by DHL, and covered by the Agreement, properly fell within the eligibility rule of the TWU. Therefore the TWU was entitled to represent the industrial interests of these employees of DHL and thus it was a bargaining representative entitled to be covered by the Agreement.
[15] In support of his submissions, Mr Fagir referred in detail to the words contained in the industry and eligibility rules of the TWU. Mr Fagir also referred to various authorities which he said supported the correct approach to interpretation and application of the words contained in the TWU eligibility rule. According to the submissions of Mr Fagir, there was no question that DHL was a business that operated in or in connection with the Transport industry. Further, Mr Fagir submitted that the evidence about the nature of the work performed by Mr Denetto and Mr Wiki established that it was work which fell within the occupational categories mentioned in the TWU eligibility rule.
[16] Mr Fagir submitted that the TWU had satisfied the legislative requirements that established it to be a bargaining representative for the Agreement and as it had made written notice in accordance with section 183 of the Act, FWA must, pursuant to subsection 201 (2) of the Act note that the TWU is covered by the Agreement.
The Case Advanced by DHL and the NUWN
[17] DHL provided evidence from its General Manager of Healthcare Consumer operations, Mr Watts, to support its contention that it is not an enterprise that operates in or in connection with the Transport industry. In summary, this evidence concerned firstly, the corporate structure of DHL as one of a number of separate Australian subsidiary companies of the multinational conglomerate, Deutsche Post DHL. This evidence sought to distinguish between DHL and the other Australian business operations broadly trading under the DHL name, some of which are undeniably operating in the Transport industry. Secondly, the evidence provided by Mr Watts established that DHL did not itself provide any of its customers with transportation services. DHL contracts with various other companies in respect of that part of a supply chain operation which involves the transportation of goods or materials from one location to another.
[18] According to the submissions made by Mr Seck on behalf of DHL, the evidence of the corporate structure and the actual business operation of DHL should lead to the conclusion that the substantial character of the DHL business is not in or in connection with the Transport industry. Further, the submissions made by Mr Seck challenged that the work performed by Mr Denetto and Mr Wiki was comprehended by the occupational classifications mentioned in the TWU eligibility rule.
[19] Consequently Mr Seck submitted that neither the substantial character of the DHL business nor the work performed by the TWU members at DHL were properly comprehended by either the industry or occupational eligibility aspects of the TWU eligibility rule. As a consequence, according to Mr Seck, the TWU was not entitled to represent the industrial interests of persons covered by the Agreement. Therefore it was unable to be a bargaining representative and could not be covered by the Agreement.
[20] The submissions made by Mr Joseph on behalf of the NUWN, broadly supported the position as advanced by DHL. In particular Mr Joseph submitted that the evidence strongly suggested that the work being performed by the TWU members did not fit within any category of the occupational aspects of the TWU eligibility rule. Further Mr Joseph submitted that even if some occupational aspect of the TWU eligibility rule such as the loading and unloading of vehicles was relied upon, the performance of such work may not be in or have sufficient connection with the transport of goods. Therefore by application of the reasoning of his Honour Hamberger SDP in Transport Workers’ Union of Australia, New South Wales Branch v Queensland Properties Investment Pty Limited1, although the employees do load and unload vehicles, to do so as part of the operation of DHL would not be in or in connection with the Transport industry.
[21] The NUWN submitted that the TWU had not properly made out its case to establish that it was entitled to represent the industrial interests of its members in relation to work performed under the Agreement and therefore it was unable to be a bargaining representative and could not be covered by the Agreement.
Consideration
[22] The consideration of this matter has been approached by firstly identifying and acknowledging five important contextual or underlying factors which I believe to be noteworthy. Having established these important contextual maters, consideration has then proceeded by way of analysis of the specific circumstances of the contested eligibility issue.
[23] Firstly, it is relevant to note the nature of these proceedings. This matter involves an application for approval of an enterprise agreement which has developed via the contested coverage issue, to require interpretation and application of the eligibility rule of a registered organisation, the TWU. The gravity of a determination in respect of the eligibility rights of any registered organisation can have much broader implications beyond the usual range of industrial issues that would ordinarily be relevant to the parties involved in an application for approval of a single-enterprise agreement.
[24] Secondly, contested eligibility of registered organisations in particular employee organisations (Unions) has, for over more than a century, been the subject of much litigation in various jurisdictions. In these proceedings the parties referred to most of the leading authorities regarding the correct approach to the interpretation and application of the rules of an organisation for the purposes of determination of representational rights. Perhaps the most helpful summary of the major cases and a précis of the principles which have been identified for application in representational rights contests can be found in the majority Decision of the case of Appeal by Dyno Nobel Asia Pacific Limited 2 (Dyno Noble).
[25] The nature and complexity of the library of litigation surrounding contested representational rights issues is well exampled by a comparative examination of the Decisions made in Dyno Noble and the Decision made only some three months later in the case of Appeal by Harnischfeger of Australia Pty Ltd 3 (Harnischfeger).
[26] Thirdly, the rules of many registered organisations have, in large part, been written in the language of the late 19th century and early 20th century. For example, the TWU eligibility rule mentions things like; work of attendance on horses and other beasts of burden; shunting by horse-power; ploughing in of night soil. This is in no way a criticism of the TWU as many other registered organisations have rules which contain similar archaic terminology. The interpretation and application of these ancient words to a modern day workplace requires care and caution particularly if any potential outcome might have broad ramifications such as to expand or constrain representational rights generally.
[27] Fourthly, the nature of work like most aspects of modern society has been significantly impacted by rapid technological change occurring at an almost exponential rate. The traditional notions of industry, occupation, industrial pursuits and callings have been and continue to be, modified by the way in which the methods of production, distribution and commercial business activity changes. Consequently many of the characteristics of the way in which work is performed and the circumstances surrounding the performance of employment need to be recognised as dynamic rather than static.
[28] Fifthly, in more recent years the emphasis that has been established on enterprise level bargaining combined with the advent of Modern Awards and the rescission of the predecessor Awards which were established by way of respondency to dispute findings, has led to major structural change of the system of industrial regulation. Enterprise agreements which fix terms and conditions of employment above the minimums prescribed by relevant Modern Awards create some natural challenges to the established arrangements for representational rights. Where there is the involvement of one or more employee organisations an understandable momentum has been created for alignment of representational rights with industrial instruments in the form of enterprise agreements.
[29] In summary, these contextual factors which underpin a contemporary representational rights contest leads me to question whether some of the traditional, established principles and methods for determination of such contests are appropriate. Nevertheless it is certainly not the role of an individual Member of FWA to endeavour to recast the established basis upon which a question of contested eligibility of a registered organisation should be decided. The contextual factors to which I have referred do direct me to believe that there may be some broad caution that should be attached to the determination of representational rights contests in the prevailing circumstances and particularly if such determination operated to significantly limit or expand the representational rights of an organisation, unless such an outcome was palpably available.
[30] The particular circumstances of the present matter, once analysed, provide for a reasonably straightforward determination. The essential question is whether or not the eligibility rule of the TWU permits it to enrol those members identified as employees of DHL who would be covered by the Agreement.
[31] The eligibility rule of the TWU has on many occasions been recognised to be of a hybrid character which includes both industry and occupational categories which establish eligibility for membership. The eligibility rule is found at Annexure B of the rules of the TWU and is in the following terms:
“ANNEXURE B - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
(A) (1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and
(b) All driving; and
(c) Chauffeurs, Conductors, and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables, and other similar places in the repair and maintenance of motor vehicles, or as attendants.
(A) (2) For the purposes of this rule a person shall be deemed to be employed in one or more of the specified industries, occupations, callings, vocations or industrial pursuits if:
(i) his usual occupation is that of an employee in one or more of the specified industries, occupations, callings, vocations or industrial pursuits; or
(ii) he is a person employed in one or more of the specified industries, or engaged in one or more of the specified industrial pursuits in the State of New South Wales, Queensland, South Australia or Western Australia who-
(a) in the case of a person so employed or engaged in New South Wales - is, or is able to become, a member of an industrial union of employees within the meaning of the Industrial Arbitration Act 1940 of that State or that Act as amended from time to time up to and including 30 April 1984;
(b) in the case of a person so employed or engaged in Queensland - is an employee for the purposes of the Industrial Conciliation and Arbitration Act 1961-1976 of that State or that Act as amended from time to time up to and including 31 December 1981;
(c) in the case of a person so employed or engaged in South Australia - is an employee for the purposes of the Industrial Conciliation and Arbitration Act 1972-1975 of that State or that Act as amended from time to time up to and including 31 December 1981;
(d) in the case of a person so employed or engaged in Western Australia - is an employee for the purposes of the Industrial Arbitration Act 1979 of that State or that Act as amended from time to time up to and including 31 December 1981.
(A) (3) Until amalgamation be effected with other organizations or associations of employees engaged in transport all persons engaged in the following classes of work shall not be eligible for membership in the organization, namely-
(i) Transport on water;
(ii) Transport on railways other than despatching of goods to railway goods sheds, depots, stations and other like places, taking delivery of goods from such places, handling of goods, such as loading and unloading into and from railway trucks, store yards, or wharves, and shunting operations by horse power;
(iii) Tramways passenger transport;
(iv) The driving of stationary engines;
(v) The driving of passenger lifts; and
(vi) The driving of agricultural machines and implements in use for agricultural pursuits.
(B) The Union shall also consist of such other persons as are elected officers of the Union and admitted as members thereof.
(C) The Union shall also consist of such members who have been granted honorary membership after being elected to parliamentary or local government positions or after twenty years good standing in the Union, provided that the persons referred in both categories are not then engaged in the industry.
(D) The Union shall also consist of such independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for Membership of the Union.
(E) The Union shall also consist of such persons (other than employees) who:
(a) are, or are able to become, members of an industrial Union of employees within the meaning of the Industrial Arbitration Act, 1940, of New South Wales;
(b) are employees for the purposes of the Industrial Conciliation and Arbitration Act 1961 of Queensland;
(c) are the employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or
(d) are employees for the purpose of the Industrial conciliation and Arbitration Act, 1972 of South Australia.
and who if they were employees would otherwise be eligible for membership of the Transport Workers Union of Australia.
(F) The Union shall also consist of an unlimited number of persons not eligible to be members of the Union under paragraphs (A)-(E) inclusive of Annexure B, wheresoever employed in the Gas Industry throughout the Commonwealth of Australia -
(i) In or in connection with the production, sale and distribution of-
(a) gas including refined and residue oil gas, and
(b) by-products of that industry and goods from the product of that industry including coke, tar, pitch fuel, sulphate of ammonia and benzol;
(ii) In bottling, packing, delivering, installing and maintaining all or any types of gas, including liquified petroleum gas, propane and butane used for all purposes;
(iii) In the production, piping, reticulation, distribution and sale of all or any types or forms of natural gases.”
[32] As has been well established by Decisions such as Dyno Noble, there is a matter of factual determination required as to whether the substantial character of the business of a relevant employer is in or in connection with a particular industry mentioned in the eligibility rule. In this case the relevant industry is broadly referred to as the Transport industry. That description is really a convenient summary of the opening stanza of paragraph (A) (1) (a) of the eligibility rule, finishing with the word “contrivances” and before the first semi-colon that appears in that subsection of the rule.
[33] The evidence that was provided in this matter revealed that some of the separate Australian business divisions which trade under the broad banner of “DHL” have an undeniable and substantial character of business in the Transport industry. It was asserted that DHL was not a transport company primarily because it contracted out that part of the supply chain that involved the actual transport of goods or materials from one location to another. I accept that proposition. Clearly the DHL business operation does not currently, directly involve the engagement of employees of DHL in the transport of goods or materials from one location to another.
[34] However in terms of the overall business operation of DHL, the transportation of goods or materials from one location to another is inextricably linked to the substantial character of the business operation of DHL. That is of course is not to say that other aspects of the business operation of DHL clearly involve storage services or warehousing activities. The DHL business operation straddles more than one industry categorisation. Importantly the extent to which the transport of goods or materials represents the substantial character of the DHL business was well summarised by the following evidence provided by Mr Watts:
“Can you just explain to the tribunal what's meant by the term "transport management solutions"?---Transport management solutions basically provides a service for the customer that allows the customer to basically hand the product over to the end customer. It allows DHL to manage that process from point A to point B, so the customer no longer needs to worry about it. They give total control to DHL, DHL then engage a third party provider to carry that product from our warehouse to the end customer, leaving the customer - the manufacturer no issues as far as needing to worry about how it gets there or when it gets there. It is controlled purely by DHL Supply Chain.”4
[35] In shorthand summary, the business of DHL is all about “getting it there”. The fact that DHL may contract to other parties to perform the physical movement of goods or materials from one location to another, does not alter its substantial business character which by whatever means, facilitates the movement and at times storage, of its customers goods or materials along the supply chain. Although terms such as logistics and supply chain solutions are used to describe the business operation, the fundamental function for which DHL is paid by its customers is the movement of goods or materials from source to endpoint. In my view no matter what words are used to describe this process it is inescapably a business the substantial character of which operates in or in connection with the transport of goods or materials, the Transport industry.
[36] In view of my finding that the substantial business character of DHL is that it operates in or in connection with the Transport industry it may be unnecessary to consider the occupational aspects of the TWU eligibility rule which were challenged in the proceedings. However I propose to make mention of two aspects that arose from the evidence relating to the work performed by the TWU members employed by DHL.
[37] On my view of the evidence and having regard for the contents of the classification structure contained in clause 13 of the Agreement, the substantive if not predominant role performed by a person classified as Storeperson could accurately be described as work involving or in connection with the loading and unloading of vehicles. Consequently I believe that the occupational category of the TWU eligibility rule would entitle it to enrol persons engaged in the classification of Storeperson.
[38] Further, I believe that such an occupational basis for satisfaction of the eligibility rule would apply even if I had not determined that the substantial business operation of DHL was in or in connection with the Transport industry. The occupational categories of eligibility rules of organisations are generally not qualified by any particular industry pre-requisite. The simplest examples of occupational basis for eligibility existing across a wide range of different industries can be found in numerous, diverse enterprises where fitters, mechanics, electricians, trades assistants and others obtain representational rights occupationally as opposed to the particular industry categorisation of their employer.
[39] However it is important to realise that two primary factors can operate so as to negate occupationally derived representational rights. Firstly, the substantive or predominant function of the individual must conform to the particular occupational category. Therefore a person who only infrequently performed work that was comprehended by a particular occupational category would be unlikely to be able to obtain representational rights connected with that occupational category. Secondly, the rules of many organisations contain exclusions so that a particular organisation which might have a general occupationally derived representational right would in respect of identified industries or enterprises have such rights removed.
[40] In instances where representational rights collide or overlap, whether it is occupationally or industry based or both, sound public policy considerations have led to the development of processes for the orderly resolution of such contests. The provisions of chapter 4 of the Fair Work (Registered Organisations) Act 2009 represent the current legislative arrangements which provide for the most appropriate mechanisms for resolution of these issues. In my view it is undesirable to have representational rights issues determined by other mechanisms such as in this case, a contest arising in proceedings involving an application for approval of an enterprise agreement.
[41] There is one further aspect of the occupational basis by which the TWU may properly obtain representational rights. The Agreement contains three levels of Mobile Service Representative (MSR) classifications. In the MSR level 1 classification, one of the functions mentioned is; “Drive a vehicle with a Gross Vehicle Mass of up to 12 tonne”. In the MSR level 2 classification, one of the functions mentioned is; “Drive a vehicle with a Gross Vehicle Mass of over 12 tonne, not an articulated vehicle”. In respect of the MSR level 3 classification, the Agreement contains the following statement; “If the employer engages an Employee whose duties include driving an articulated vehicle, the parties determine an appropriate pay rate, no less than that or Mobile Service Representative Level 2.”
[42] The inclusion of these driving functions in this configuration and including the prospect of engagement at some future time of an employee whose duties include driving an articulated vehicle, provides strong indication that the Agreement covers or is anticipated in the future to cover, work which is predominantly driving. Consequently it would appear that there is significant prospect that upon more detailed examination, the employees classified in any of the MSR levels would be eligible for membership of the TWU irrespective of any industry categorisation that might be applied to DHL.
Conclusion
[43] In this instance an application for approval of an enterprise agreement has involved contest about the coverage of the Agreement. The contested coverage issue has involved a requirement to determine representational rights arising in respect of the eligibility rule of an employee organisation, in this case the TWU.
[44] In order to determine the representational rights question I have analysed evidence of the nature of the employer's business operation and the work performed by confirmed members of the TWU covered by the Agreement. This analysis has led me to conclude that the substantial character of the employer's business and the work performed by members of the TWU conforms with both the industry and occupational terms of the eligibility rule of the TWU. Therefore the TWU is entitled to enrol those persons as members and represent their industrial interests. Accordingly the TWU is a bargaining representative for the Agreement.
[45] The 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. As required by subsection 201 (2) of the Act I note that the Agreement covers the TWU.
[46] The Agreement is approved to operate from 21 July 2011. The nominal expiry date of the Agreement as specified in clause 5 of the Agreement, is 30 June 2013. This Decision is to be read in conjunction with the Interim Decision [PR511593] issued in this matter and this Decision now finalises the approval process for the Agreement.
COMMISSIONER
Appearances:
Mr O Fagir appeared for the TWU;
Mr M Seck, barrister, together with Mr J Corlett, solicitor, appeared for DHL; and
Mr A Joseph, barrister, together with Mr S Mueller appeared for the NUWN.
Hearing details:
Sydney.
21 & 22 September 2011.
COMMISSIONER
1 Transport Workers’ Union of Australia, New South Wales Branch v Queensland Properties Investment Pty Limited[2011] FWA 285.
2 Appeal by Dyno Nobel Asia Pacific Limited [2005] (14 July 2005) [PR956868].
3 Appeal by Harnischfeger of Australia Pty Ltd [2005] (13 October 2005) [PR963826].
4 Transcript of proceedings (21 September 2011) @ PN639.
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