GPC Asia Pacific Pty Ltd

[2019] FWCA 6226

[2019] FWCA 6226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GPC Asia Pacific Pty Ltd
(AG2019/3017)

GPC ASIA PACIFIC WINGFIELD DISTRIBUTION CENTRE AGREEMENT 2019

Vehicle industry
COMMISSIONER PLATT	ADELAIDE, 10 SEPTEMBER 2019

Application for approval of the GPC Asia Pacific Wingfield Distribution Centre Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the GPC Asia Pacific Wingfield Distribution Centre Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by GPC Asia Pacific Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 August 2019.

[3] Upon review of the proposed Agreement, I identified a number of issues, including:

•  Whilst clause 22.31 of the Agreement provides for 4 weeks annual leave, clause 22.3.3 of the Agreement provides that the time deducted from the employee’s accrued entitlement shall be equivalent to the rostered hours. It is possible that this approach is in conflict with the National Employment Standards (NES) under the Act.

•  Clause 22.1.1 of the Agreement provides for 10 days personal leave, however clause 22.1.6 of the Agreement provides that the time deducted from an employee’s entitlement shall be equivalent to the rostered hours not worked. It is possible that this approach is also in conflict with the NES.

•  The definition of a shift worker for the purposes of the NES is located at clause 22.3.12. There is a requirement within that definition that the worker must be regularly rostered to work in a business in which shifts are continuously rostered 24 hours a day for seven days a week. This is an additional requirement that is not required by the definition contained at clause 29.7 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010.

[4] Clause 4 of the Agreement provides that “where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency.” This clause has the effect of remedying any concerns that 22.3.3 and 22.1.6 provide terms inferior to the NES.

[5] In respect of my concern about the more onerous definition of a shift worker (compared to the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award)), any deficiency is compensated by the increased wage rates contained in the Agreement.

[6] I also note clause 5 of the Agreement provides that the Agreement is to be read wholly in conjunction with the Award. If an inconsistency between the two arises, the Agreement shall prevail to the extent of the inconsistency. Where the Agreement is silent upon a topic, the Award provisions shall apply.

[7] The “Shop, Distributive and Allied Employees Association (SDA)”, 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.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 23 July 2023.

COMMISSIONER

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