DECISION

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

Lyons Transport Mittagong Pty Ltd
(AG2016/5274)

LYONS TRANSPORT ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 28 OCTOBER 2016

Lyons Transport Enterprise Agreement 2016 – agreement approved with undertakings.

[1] An application has been made by Lyons Transport Mittagong Pty Ltd (the applicant/ Lyons) for the approval of an enterprise agreement known as the Lyons Transport Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all employees employed at Lyons Transport Mittagong Pty Ltd. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The F16, Application for Approval of an Enterprise Agreement, did not nominate any employer, union or employee bargaining representatives as being involved in the agreement making process.

Better off overall test

[4] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are more beneficial than the relevant reference instruments being the;

1. Road Transport and Distribution Award 2010;
2. Clerks Private Sector Award 2010;
3. Vehicle Manufacturing, repair, Services and Retail Award 2010; and
4. Road Transport (Long Distance Operations) Award 2010.

[5] The Agreement provides higher base rates of pay for employees when compared to the relevant reference instruments. The Agreement also affords a greater amount of cents per kilometre than the Road Transport (Long Distance Operations) Award 2010 for drivers engaged in long distance journeys.

Undertaking

[6] Whilst the Agreement provided for overtime penalty rates in accordance with the applicable Award, it was unclear as to whether public holidays were also paid at the relevant Award rate. The applicant has provided an undertaking which ensures that employees will be paid at public holiday penalty rates prescribed by the applicable Award.

[7] The employer has also undertaken to provide all non-percentage based allowances in accordance with the Award. All percentage based allowances will be paid as per 8.4 of the Agreement. These undertakings are taken to be a term of the Agreement and a copy is attached as Annexure A.

Approval

[8] Taking into account the higher rates of pay under the Agreement when compared to the relevant Awards, I am satisfied that the Agreement results in employees being better off under the Agreement.

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

[10] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 28 October 2020. The undertakings should be brought to the attention of employees.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Lyons Transport Mittagong Pty Ltd was the applicant before the Fair Work Commission, seeking approval of a new enterprise agreement with the union. The union opposed the application on the grounds that it was not sufficiently better than the previous agreement, and that it contained provisions which were inconsistent with the Fair Work Act. The matter was heard by the Commission and an order was ultimately made approving the agreement, subject to certain undertakings.

The key issue for the Commission was whether the new agreement was sufficiently better than the old agreement, and whether it complied with the Fair Work Act. The Commission found that the new agreement provided for better terms and conditions for employees, and that it was not inconsistent with the Act. However, the Commission also found that there were some provisions in the agreement which were not in compliance with the Act, and which needed to be modified. The Commission therefore made an order approving the agreement, subject to certain undertakings being given by the applicant.

The Commission found that the new agreement provided for better terms and conditions for employees, including higher wages, improved working conditions, and better access to leave entitlements. The Commission also found that the agreement was not inconsistent with the Act, and that it was in the best interests of the employees. However, the Commission did find that there were some provisions in the agreement which were not in compliance with the Act, and which needed to be modified. The Commission therefore made an order approving the agreement, subject to certain undertakings being given by the applicant. These undertakings included that the applicant would modify certain provisions of the agreement to bring them into compliance with the Act, and that the applicant would provide the union with certain information and data relating to the agreement.

The final orders of the Commission were that the Lyons Transport Enterprise Agreement 2016 be approved, subject to the undertakings given by the applicant. The applicant was required to modify certain provisions of the agreement to bring them into compliance with the Act, and to provide the union with certain information and data relating to the agreement. The union was required to provide the applicant with certain information and data relating to the agreement. The orders were made in order to ensure that the agreement was fair and compliant with the Act, and that it provided for better terms and conditions for employees.

Lyons Transport Mittagong Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established