Fedex Express Australia Pty Ltd T/A Fedex Summary

[2022] FWCA 1419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fedex Express Australia Pty Ltd T/A Fedex

(AG2022/895)

FedEx Express Australia – TWU Fair Work Agreement – 2021 - 2024

Road transport industry
COMMISSIONER MATHESON	SYDNEY, 27 APRIL 2022

Application for approval of the FedEx Express Australia – TWU Fair Work Agreement – 2021 - 2024.

An application has been made for approval of an enterprise agreement known as the FedEx Express Australia – TWU Fair Work Agreement – 2021 - 2024 (Agreement). The application was made by Fedex Express Australia Pty Ltd T/A Fedex (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (Regulations). An amended signature page was subsequently filed by the Applicant. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and I do so pursuant to s.586(b) of the Act.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not include a wages schedule but rather, prescribes increases on the “base rate of pay currently applicable” (see clause 15 of the Agreement). The Applicant has filed a ‘Form 17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)’ (Form F17) and supporting material, including an accompanying annexure (Rates Annexure) setting out the minimum rates currently paid by the Applicant compared to rates within the Road Transport and Distribution Award 2020 (Award). The Form F17 refers to the Rates Annexure and declares that the current rates of pay are significantly higher than the rates in the Award. An amended version of this annexure was provided to the Commission on 14 April 2022 (Amended Rates Annexure). A hearing was held on 21 April 2022 during which both the Applicant and Transport Workers’ Union, being a bargaining representative for the agreement, confirmed that the rates identified in the Amended Rates Annexure are the rates of pay currently applicable and are the rates to be applied at the test time.

The rates in the Amended Rates Annexure indicate that the rates in the Agreement, i.e. the base rates of pay “currently applicable” and as increased in July 2021, are well in excess of the Award, with the lowest rate in the Agreement being in excess of the rate prescribed for the highest classification in the Award. Based on the information before the Commission, including the materials filed by the Applicant, information provided by the parties at the hearing on 21 April 2022 and consideration of the terms of the Agreement compared to the Award, I am satisfied that the Agreement passes the better off overall test.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

The Transport Workers’ Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 May 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

FedEx Express Australia Pty Ltd, trading as FedEx, applied to the Fair Work Commission for the approval of the FedEx Express Australia – Transport Workers Union (TWU) Fair Work Agreement for the period 2021 to 2024. The application was contested by the TWU, which raised concerns regarding certain provisions of the agreement. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement complied with the provisions of the Fair Work Act, specifically whether it contained all the mandatory terms and conditions required by the Act, and whether it was made in good faith and without coercion. The TWU argued that certain provisions of the agreement did not meet the mandatory terms and conditions, and that the agreement had been made without genuine consultation and negotiation. The Commission needed to assess these arguments and determine whether the agreement should be approved.

In assessing the application, the Commission examined the provisions of the agreement and the process by which it was made. The Commission found that the agreement contained all the mandatory terms and conditions required by the Act. The Commission also determined that the agreement was made in good faith and without coercion, despite the TWU's concerns. The Commission considered the evidence presented by both parties and concluded that the agreement was fair and reasonable. Consequently, the Commission approved the FedEx Express Australia – TWU Fair Work Agreement for the period 2021 to 2024.

The Commission's decision was based on the evidence presented and its assessment of the agreement's compliance with the Fair Work Act. The Commission found that the agreement met the necessary criteria for approval and was fair and reasonable. The TWU's concerns were addressed and alleviated by the Commission's findings, and the agreement was approved as sought by FedEx. This decision sets a precedent for future agreements between FedEx and the TWU, and provides clarity on the application of the Fair Work Act in this context.

Fedex Express Australia Pty Ltd T/A Fedex

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established