Flinders Logistics Pty Ltd T/A Flinders Logistics

[2021] FWCA 5286

[2021] FWCA 5286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flinders Logistics Pty Ltd T/A Flinders Logistics
(AG2021/6717)

FLINDERS LOGISTICS PORT PIRIE OPERATIONS AGREEMENT, 2020-2024

Stevedoring industry
COMMISSIONER PLATT	ADELAIDE, 27 AUGUST 2021

Application for approval of the Flinders Logistics Port Pirie Operations Agreement, 2020-2024.

[1] An application has been made for approval of an enterprise agreement known as the Flinders Logistics Port Pirie Operations Agreement, 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Flinders Logistics Pty Ltd T/A Flinders Logistics (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 20 August 2021.

[3] On 24 August 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] It is noted that the notification time for the Agreement was 25 August 2020, and the Notice of Employee Representational Rights (NERR) was not provided to employees until 13 April 2021. I understand the NERR was inadvertently not issued to employees, and the error was corrected as soon as it was identified. I do not believe that the delayed distribution of the NERR had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 25 August 2021. The undertaking deals with the following topics:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  When an eligible employee takes leave of less than 7 hours duration, the actual number of hours taken will be deducted from the employee’s leave balance. When an employee takes one full day of leave, only 7 hours of leave will be deducted for each day of leave taken.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), 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 this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512878  PR733208>