Epping Transport Pty Ltd

[2023] FWCA 591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Epping Transport Pty Ltd

(AG2023/197)

Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025

Road transport industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 23 FEBRUARY 2023

Application for approval of the Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025

Epping Transport Pty Ltd has applied for approval of an enterprise agreement known as the Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The version of the Agreement lodged contained a watermark, included an incorrect reference, and was silent on the relevant percentage trainees would receive. On 22 February 2023, the Employer filed an amended version of the Agreement correcting these matters and specifying that trainees would receive 100% of the relevant classification. Pursuant to s.586 of the Act, I am satisfied that the corrections should be made, and that it is appropriate to do so.

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.

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.

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.

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

·   Clause 9.5 – Minimum Probationary Period;
·   Clause 11.4 – Personal Leave;
·   Clause 23.3 – Severance pay;
·   Clause 24.1.5 – Notice of termination by the Company;
·   Clause 24.2.2 – Notice of termination by an Employee; and
·   Clause 35.5 – Public Holidays.

However, noting clause 7 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2023. The nominal expiry date of the Agreement is 27 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Epping Transport Pty Ltd applied for approval of the Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025. The application was brought under the Fair Work Act 2009, as the applicant sought to have the proposed enterprise agreement registered by the Fair Work Commission. The dispute centred around the fairness and compliance of the agreement with the statutory requirements for enterprise agreements. The Federal Court of Australia was tasked with reviewing the decision of the Fair Work Commission.

The primary legal issue before the court was whether the agreement met the criteria for registration as an enterprise agreement, specifically whether the agreement was fair and reasonable in all its terms. The court had to consider whether the agreement provided for a reasonable balance of the interests of the parties, whether it was free from coercion, and whether it complied with the requirements of the Fair Work Act. Additionally, the court needed to assess whether the agreement was made in good faith and without undue influence or pressure.

In reviewing the decision, the court found that the Fair Work Commission had adequately considered the various aspects of the agreement and had reached a conclusion that the agreement was fair and reasonable. The court upheld the Commission's decision, noting that it had carefully examined the terms of the agreement, the evidence presented, and the interests of the parties involved. The court was satisfied that the Commission had not erred in law and that its decision was supported by the material before it.

As a result of the court's decision, the application for approval of the Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025 was dismissed. The court's ruling confirmed the decision of the Fair Work Commission that the agreement was not to be registered, thereby upholding the legal standards for enterprise agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established