FedEx Express Australia Pty Limited Summary

[2024] FWCA 3914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

FedEx Express Australia Pty Limited

(AG2024/3892)

FEDEX EXPRESS AUSTRALIA – TWU FAIR WORK AGREEMENT – 2024 - 2026

Road transport industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 8 NOVEMBER 2024

Application for approval of the FedEx Express Australia – TWU Fair Work Agreement – 2024 - 2026

An application has been made for approval of an enterprise agreement to be known as the FedEx Express Australia – TWU Fair Work Agreement – 2024 - 2026 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by FedEx Express Australia Pty Limited (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 8 November 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Road Transport and Distribution Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation(s)

The Transport Workers’ Union of Australia (TWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.

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 15 November 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

FedEx Express Australia Pty Limited applied to the Fair Work Commission for approval of a Fair Work Agreement with the Transport Workers Union. The agreement was intended to cover employees from 2024 to 2026. The TWU opposed the application, arguing that certain terms of the agreement were not in the best interests of the employees. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement met the statutory criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for terms and conditions of employment that were no worse off financially than the terms under the applicable award and if the agreement contained a clause allowing for the agreement to be varied in the event of a change in circumstances.

The Fair Work Commission held that the agreement did not meet the statutory requirements for approval. The Commission found that the proposed agreement contained provisions that were less favourable to employees than the terms and conditions provided under the relevant award. Additionally, the agreement did not include a clause that allowed for its variation in the event of a change in circumstances, which is a mandatory requirement for a Fair Work Agreement. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the FedEx Express Australia – TWU Fair Work Agreement – 2024 - 2026 be dismissed. The Commission also directed that the agreement could not be approved unless and until it complied with the statutory requirements of the Fair Work Act 2009.

FedEx Express Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established