Fredericks Petroleum Pty Ltd T/A Adelaide Fuel Distributors

[2021] FWCA 3614

[2021] FWCA 3614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fredericks Petroleum Pty Ltd T/A Adelaide Fuel Distributors
(AG2021/5486)

ADELAIDE FUEL DISTRIBUTORS 2021 DRIVER ENTERPRISE AGREEMENT

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 23 JUNE 2021

Application for approval of the Adelaide Fuel Distributors 2021 Driver Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Adelaide Fuel Distributors 2021 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.

[2] The matter was allocated to my Chambers on 9 June 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 22 June 2021. The undertaking deals with the following topics:

•  The commencement date of the Agreement will be seven days after approval by the Commission, and the nominal expiry date will be 30 June 2024.

•  The Agreement will be read as if clause 18.2 has been removed from the Agreement.

•  ‘Attachment C’ to the Agreement forms part of the Agreement as voted on, and therefore the Agreement has a valid National Employment Standards (NES) Precedence Clause.

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

[5] 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.

[6] There are three NES issues that require comment.

•  Clause 11.2.1 of the Agreement states that hours of work will be 40 hours per week. This appears to be inconsistent with s.62 of the Act, which states that a full-time employee will not be required to work more than 38 hours in a week unless the additional hours are reasonable.

•  Clause 13.1 contains an annual leave entitlement which is based on a 35-hour week and is expressed as a dollar amount. This appears to be inconsistent with s.87 of the Act, which states that for each year of service with the employer, employees will be entitled to 4 weeks of paid annual leave, or 5 weeks of paid annual leave if the employee is defined as a shiftworker for the purposes of the NES

•  Clause 13.4 only lists Good Friday and Christmas Day as public holidays that employees do not work and does not state that an employer can request an employee to work on a public holiday if the request is reasonable as required by s.114 of the Act.

[7] The Agreement has a NES Precedence Clause in ‘Attachment C’, which is confirmed as forming part of the Agreement through the undertaking provided. The NES Precedence Clause states that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES Precedence Clause, the above clauses will not apply to the extent they are inconsistent with the NES.

[8] The Transport Workers’ Union (TWU), 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

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