Maxwell Transport Group Pty Ltd
[2009] FWA 417
•30 SEPTEMBER 2009
[2009] FWA 417 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/12111)
MAXWELL TRANSPORT COLLECTIVE WORKPLACE AGREEMENT
Private transport industry | |
COMMISSIONER LEWIN | MELBOURNE, 30 SEPTEMBER 2009 |
Application for approval of the Maxwell Transport Collective Workplace Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Maxwell Transport Collective Workplace Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Maxwell Transport Group Pty Ltd. The agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] Section 186 of Part 2-4 of Chapter 2 of the Act is in the following terms.
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.
Requirement for a nominal expiry date etc.
(5) FWA must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which FWA approves the agreement.
Requirement for a term about settling disputes
(6) FWA must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.”
[4] The Tribunal’s consideration of the application includes a requirement that the Agreement not be approved unless its terms meet a “no disadvantage test” 2. When considering the terms of the agreement the no disadvantage test operates during the bridging period in lieu of the “better off overall test”. The Tribunal has identified certain concerns in relation to the no disadvantage test.
[5] In order to provide the applicant an opportunity to be heard in relation to the concerns identified, the matter was listed for hearing at 4.30 pm on Monday 29 September 2009. There was no appearance by the applicant. Before the matter was called, my Associate unsuccessfully attempted to contact the applicant using the mobile telephone contact number provided with the application. The matter was called and there was no appearance. Later my Associate received by voicemail a message from the applicant as follows.
“Hi Gia, it’s Jason Barnes here from Maxwell Transport just returning your call. I didn’t think there was a necessity for me to be there today. If there was it didn’t sort of say so on the paper work, so obviously I won’t be there. If you need to give me a call back, please feel free. You have my number. Thank you. Bye.”
[6] The Agreement would apply to truck drivers. On the material before me I consider that the Agreement will disadvantage employees covered by its terms. Testing of the Agreement indicates that what are referred to as loaded rates will apply to employees in what are referred to as Grades 3, 4, 6 and 8, with attendant classifications based on the categorisation of the vehicle driver by the driver.
[7] Testing of the provisions of the Agreement indicates that at least at the level of Grades 3 and 8, depending upon the hours of work of a truck driver, the terms of the Agreement are less advantageous than those which would apply under the relevant award.
[8] In particular it would seem that if a level 3 employee were to work for more than 52 hours between Monday and Friday, which is permitted by the Agreement, the employee would be so disadvantaged.
[9] The Agreement permits that the hours of work may be rostered over any of the seven days of the week. If the 38 ordinary hours of work were rostered equally over all of the days of the week, employees at level 3 and 8 would both be relevantly disadvantaged.
[10] For these reasons it is not appropriate to approve the terms of the Agreement. It may be possible to approve the terms of the Agreement if an appropriate undertaking or undertakings were given pursuant to and in accordance with the provisions of section 190, which are set out below.
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWA must seek views of bargaining representatives
(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”
COMMISSIONER
1 Item 2, Part 1, of Schedule 2.
2 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Division 1, Part 2 of Schedule 7
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