McNaughts Transport Pty Ltd

[2015] FWCA 3531

[2015] FWCA 3531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McNaughts Transport Pty Ltd
(AG2015/2361)

MCNAUGHTS TRANSPORT ENTERPRISE AGREEMENT 2015

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 22 MAY 2015

Application for approval of the McNaughts Transport Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the McNaughts Transport Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by McNaughts Transport Pty Ltd. The agreement is a single-enterprise agreement, which also covers McNaughts Grain and Fertiliser Pty Ltd and McNaughts Logistics Pty Ltd.

[2] A form F18 was subsequently lodged by the Transport Workers’ Union of Australia, NSW Branch (the TWU), which was a bargaining representative for the Agreement, setting out a number of deficiencies and stating that it did not support approval but wished to be covered by the Agreement should it be approved.

[3] An analysis in relation to Better Off Overall Test (BOOT) was conducted in my chambers and McNaughts was also asked to respond to the points raised by the TWU in its form F18. Following receipt of McNaughts’ response, the application was brought on for hearing before me in Sydney on 18 May 2015. The TWU advised my chambers prior to the hearing that it would not appear and wished to rely on its written materials only. At the hearing, McNaughts was represented by Mr A Spottiswood of NatRoad.

[4] I have carefully considered the arguments put forward by both McNaughts and the TWU and am satisfied that the Agreement meets the BOOT overall. Here I note the Full Bench decision in CFMEU v B J Jarrad Pty Ltd 1 which says:

“In conducting the BOOT, the Commission is required to form an overall impression of an enterprise agreement in which ‘no one [consideration] and no combination of [consideration] is necessarily determinative of the result’ and the decision-maker is ‘allowed some latitude as to the choice of the decision to be made’. 2 A decision with respect to the BOOT is therefore a discretionary decision.”

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[6] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers that organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 May 2015. The nominal expiry date of the Agreement is 21 May 2019.

COMMISSIONER

 1   [2013] FWCFB 8740.

 2 (2000) 203 CLR 194 at 205 [19].

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