Martin Brower Australia Pty Ltd T/A Martin Brower Australia Pty Ltd

[2016] FWCA 7140

[2016] FWCA 7140

FAIR WORK COMMISSION

DECISION

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

Martin Brower Australia Pty Ltd T/A Martin Brower Australia Pty Ltd
(AG2016/5120)

MARTIN BROWER AUSTRALIA PTY LTD AND TRANSPORT WORKERS UNION OF AUSTRALIA - NATIONAL ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 13 OCTOBER 2016

Application for approval of the Martin Brower Australia Pty Ltd and Transport Workers Union of Australia - National Enterprise Agreement 2016

[1] An application has been made by Martin Brower Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Martin Brower Australia Pty Ltd and Transport Workers Union of Australia - National 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 employees of the applicant who are employed in operations involving warehousing, transport and delivery. 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 Transport Workers’ Union of Australia (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

Notice of termination clause

[4] The Commission wrote to the applicant with the concern that clause 26.1 of the Agreement allows the employer to terminate the employment of apprentices without notice, contrary to s.123 of the Act which does not include apprentices among those employees an employer may terminate without notice.

[5] The applicant wrote to the Commission noting that the inclusion of apprentices in clause 26.1 was an oversight. The applicant has provided an undertaking removing the reference to apprentices in that clause. A copy of the undertaking is attached to this decision and marked Annexure A.

Better off overall test (BOOT)

[6] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are overall more beneficial than under the Road Transport Distribution Award 2016 (the Award), being the relevant instrument for the purposes of the BOOT. Under the Agreement some Award entitlements have been reduced, including weekend penalty rates, however the Agreement provides base rates of pay that are significantly higher for all classifications under the Agreement, as well as more beneficial redundancy pay entitlements.

Conclusion

[7] Taking into account the higher rates of pay and redundancy entitlements under the Agreement, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[8] The undertaking is taken to be a term of the Agreement and a copy is marked Annexure A. A copy of the undertaking was provided the TWU by way of email. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[9] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[10] I am 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.

[11] 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 30 June 2019.

DEPUTY PRESIDENT

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Annexure A