John L Pierce Pty Ltd

[2013] FWCA 3796

[2013] FWCA 3796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

John L Pierce Pty Ltd
(AG2013/1327)

JOHN L PIERCE SOUTHERN REGION PETROLEUM DIVISION ENTERPRISE AGREEMENT 2013

Road transport industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 JUNE 2013

Application for approval of the John L Pierce Southern Region Petroleum Division Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by John L Pierce Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the John L Pierce Southern Region Petroleum Division Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with four employee bargaining representatives. The Agreement is to cover 94 employees who are engaged in the applicant’s road transport business in the bulk tanker division working across the Sydney Metropolitan Region and Southern New South Wales. I note that another proposed enterprise agreement is to cover employees of the applicant working in Northern New Sales and Southern Queensland (see [2013] FWCA 3797). For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 19 February 2013, and voting for the Agreement’s approval took place on 14 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot at offices of depots in each region, 57 of the 62 employees who voted, to approve the Agreement. The application for approval of the Agreement was lodged on 30 May 2013. While this is two days out of time, in view of the submissions of applicant, the content of the Agreement and the brief delay in filing, I consider that it is fair in all the circumstances to extend the date for the application to be made to 30 May 2013 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Pierce identified the Road Transport and Distribution Award 2010 [MA000038], the Clerks - Private Sector Award 2010 [MA000002], the Transport Industry - Petroleum &C., Distribution (State) Award [AN120608] and the Clerks (Road Transport Industry) Award 2002 [AP818787] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Piercesaid that the Agreement does not provide for any terms and conditions that are less beneficial for clerical and operations staff. In relation to transport workers, the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a dangerous goods allowance, a reduction in casual rates from 25% to 20% and a reduction to meal allowance entitlements; all of which are said to be incorporated in the higher rates of pay. However, the Agreement also provides for a number of terms and conditions that are in excess of, or more beneficial than those under the Agreement in relation to these employees, including rates of pay that are between 47% and 50% higher than those under the Award. The Agreement also provides for increases in rates of pay of between 0.4% and 23% for clerical employees and 29% and 121% for Operations Staff. Transport workers also receive paid meal and rest breaks and are paid a shift allowance for day shift work. Rates of pay are to be adjusted annually on the anniversary of the Agreement with reference to the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at Part 2, Clause 1 and Part 2, Clause 2 respectively, and a disputes resolution procedure Part 2, Clause 3 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 14 June 2013, Ms A Salama, Solicitor,appeared with Mr P Pierce, National Operations Manager and Mr P Silva, Compliance and Training Managerfor the applicant. Two of the employee bargaining representatives, Mr B Connell and Mr D McPherson, also attended the hearing. At the outset of the hearing, I determined that it was appropriate to join this matter with another matter, being an application for approval of the John L Pierce Northern Region Petroleum Division Enterprise Agreement 2013 (See: [2013] FWCA 3797).Ms Salama outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Mr Silva explained that the applicant operated with two enterprise agreements because it regarded its operations in the country regions of Northern New South Wales and Southern Queensland as operationally distinct from those in Metropolitan Sydney and Southern New South Wales. Drivers who serviced the country regions expressed a preference for a lower rate of hourly pay, but with higher meal allowances. While the same four employee bargaining representatives negotiated both agreements, the four employees were nominated by a decision of the two driver groups. While I noted that clause 2 of Part 4 of the Agreement seemed to reference a number of the applicant’s policies as binding on the employees, Ms Salama submitted that the relevant policies were merely referred to in the Agreement, rather than being a part of it. The two bargaining representatives present at the hearing indicated that they were happy with the terms of the Agreement.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the John L Pierce Southern Region Petroleum Division Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 21 June 2013 and have a nominal expiry date of 21 June 2016.

DEPUTY PRESIDENT

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