Fredericks Petroleum Pty Ltd T/A Adelaide Fuel Distributors

[2024] FWCA 3856

[2024] FWCA 3856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Fredericks Petroleum Pty Ltd T/A Adelaide Fuel Distributors

(AG2024/3788)

ADELAIDE FUEL DISTRIBUTORS 2024 DRIVER ENTERPRISE AGREEMENT

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 5 NOVEMBER 2024

Application for approval of the Adelaide Fuel Distributors 2024 Driver Enterprise Agreement

1. An application has been made for approval of an enterprise agreement known as the Adelaide Fuel Distributors 2024 Driver Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Fredericks Petroleum Pty Ltd T/A Adelaide Fuel Distributors (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 21 October 2024.

1. On 24 October 2024, 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.

1. There is one National Employment Standard (NES) issue that requires comment:

·  Clause 6.3.3 provides that severance pay is not payable where the employer finds suitable alternative employment however the provision is not subject to an application made under s.120 of the Act.

1. Clause 1.4.2 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 1 November 2024. The undertaking deals with the following topics:

·  Causal employees will not be engaged under the Agreement.

·  The casual employment provisions contained in Clause 2.1.4 are removed from the Agreement.

·  Clause 5.3.3 is replaced with the following:

“Employees are expected and encouraged to take each year's entitlement as soon as practical each year.  Leave may be taken inbroken periods by mutual agreement between employer and employees.  The employer may issue a direction to take leave if excessive leave, in excess of 8 weeks, has accrued.  No direction may be given without first engaging in discussion with the employee in an effort to address excessive leave by agreement.  Any direction must be given in compliance with the mechanisms for addressing excessive leave as outlined in the Road Transport and Distribution Award (Clause 24)."

·  Clause 5.8.3 is replaced with the following:

“The employer may request the employee to work public holidays when reasonable and Employees may refuse the request on reasonable grounds."

·  Clause 6.13.1(f) is replaced with the following:

“The employer will have the right to stand down the employee, who through loss of terminal access, is unable to perform their duties as a tanker driver, until such time as the access is reinstated."

·  In respect of better off overall issues relating to rates of pay, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery.[1]

1. 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 representatives supported the undertaking.

1. 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.

1. The Transport Workers’ Union of Australia – SA/NT Branch, 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.

1. 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.

1. 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 2027.

COMMISSIONER

[1] [2017] FWCFB 1664

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