J.A.T. Refrigerated Road Services Pty Ltd

[2016] FWCA 142

[2016] FWCA 142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

J.A.T. Refrigerated Road Services Pty Ltd
(AG2015/6911)

J.A.T REFRIGERATED ROAD SERVICES PTY LTD & TRANSPORT WORKERS UNION, QUEENSLAND BRANCH (LINEHAUL & LOCAL DRIVERS) ENTERPRISE AGREEMENT 2015

Road transport industry
COMMISSIONER GREGORY	MELBOURNE, 12 JANUARY 2016

Application for approval of the J.A.T. Refrigerated Road Services Pty Ltd & Transport Workers Union, Queensland Branch (Linehaul & Local Drivers) Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the J.A.T. Refrigerated Road Services Pty Ltd & Transport Workers Union, Queensland Branch (Linehaul & Local Drivers) Enterprise Agreement 2015 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by J.A.T. Refrigerated Road Services Pty Ltd. It is a single-enterprise agreement.

[2] The Queensland Branch of the Transport Workers’ Union, who are indicated in the Application to be a bargaining representative for the Agreement, provided a Form 18, Statutory Declaration of an Employee Organisation, indicating they wish to be covered by the proposed Agreement. However, the Union also raised a number of matters in its Declaration relating to various terms in the Agreement and indicating they disagree with some of the answers provided in the Employer’s Statutory Declaration about those matters. The Employer’s representative, Mr Paul Ryan, subsequently provided a response in regard to each of those matters, which has also been taking into account in dealing with the application. It is appropriate at this point to provide some clarification in response about each of the matters raised.

[3] The TWU, firstly, suggests that particular provisions in the Personal Leave clause in the Agreement (sub clauses 5.4.5) appear to limit the public holiday entitlements provided for in the National Employment Standards by requiring a medical certificate to be provided before any entitlement applies to payment for the public holiday when personal leave is taken on the day prior to or the day after a public holiday. However, it is noted in response that a similar limitation is contained in sub clause 28.2(b) of the underlying Road Transport and Distribution Award 2010 when it states:

“An employee who, without the consent of their employer or without reasonable cause, is absent from work on the day before or the day after a public holiday is not entitled to any payment for such public holiday.”

[4] The Union also notes that the Redundancy term in the Agreement (clause 6.2) could be construed as limiting an employee’s entitlement to long service leave by seemingly imposing a requirement that an employee must have been employed for a period of ten years before they are entitled to long service leave, in circumstances where the applicable State based long service leave legislation provides an entitlement to leave on termination after being employed for a period of only seven years. However, it is noted that the Employer has indicated in response that this is not the intention. The clause is instead only intended to make clear that in circumstances where an employee has an entitlement to redundancy pay they will also be entitled to receive their applicable long service leave entitlements at the same time, and the clause is not intended in any way to constrain or limit that entitlement.

[5] The Union also notes that the Agreement does not provide for an additional week of annual leave for shift workers, as defined, being employees who are seven-day shift workers and are regularly rostered to work on Sundays and public holidays. However, the Employer has indicated in response that there are no shift workers, as defined, employed by the business at this point in time and there is no intention to employee any such shift workers in the future.

[6] The TWU also notes that the provisions dealing with an employee who elects to take time off in lieu instead of being paid for any overtime worked are different in the Agreement when compared with the provisions contained in the Road Transport and Distribution Award. Sub clause 27.7(b) in the Award provides that where time off in lieu is taken then the amount of time taken is to be equivalent to the pay the employee would otherwise have received for working overtime, being either time and a half or double time. However the provisions contained in sub clause 4.2.4 of the Agreement provide that the entitlement to time in lieu only equates to the number of actual overtime hours worked. This difference is acknowledged, however, it is also noted that the better off overall test is conducted on a global basis, rather than requiring a line by line assessment. The issue raised by the Union in regard to sub clause 11.5.4 can also be viewed in the same way.

[7] The Union also raises an issue about the provisions contained in sub clause 11.1.3 of the Agreement, however, I am satisfied that there is nothing that prevents a term of this kind being contained in an enterprise agreement.

[8] The final matter concerns the provisions contained in sub clause 11.5.4 of the Agreement, which potentially enable deductions from pay to be made by the Employer in the circumstance as described in the sub clause. However, section 324(1)(b) of the Fair Work Act does enable deductions to be made where they are authorised by the employee in accordance with an enterprise agreement. In this context the provisions in s.326 are also noted, however, I am satisfied that the nature of the potential deductions in this case are not “unreasonable in the circumstances.”

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

[10] As indicated, the Transport Workers’ Union, 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) I note that the Agreement covers the organisation.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 January 2016. The nominal expiry date of the Agreement is 19 January 2019.

COMMISSIONER

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