Murphy Transport Solutions Pty Ltd

[2016] FWCA 6152

[2016] FWCA 6152

FAIR WORK COMMISSION

DECISION

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

Murphy Transport Solutions Pty Ltd
(AG2016/4160)

MURPHY TRANSPORT SOLUTIONS PTY LTD ENTERPRISE AGREEMENT (NEW SOUTH WALES) 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 SEPTEMBER 2016

Application for approval of the Murphy Transport Solutions Pty Ltd Enterprise Agreement (New South Wales) 2016

[1] An application has been made by Murphy Transport Solutions Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Murphy Transport Solutions Pty Ltd Enterprise Agreement (New South Wales) 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 located at Lisbon Street, Fairfield East, NSW who are required to perform work covered by the Agreement. 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.

Late lodgement

[3] The applicant lodged the application for approval of the Agreement on 8 August 2016, 17 days after the Agreement was made, and not within the 14 days after the Agreement was made, pursuant to s. 185(3)(a) of the Act.

[4] The applicant has explained to the Commission that the reason for the late lodgement of the application is that the Transport Worker’s Union (TWU) official who was involved in the negotiations had several days of personal leave during the 14 day period and as such was unable to provide the applicant with the TWU’s F18 form and to sign the Agreement on behalf of the employees.

[5] In the circumstances outlined by the applicant, and pursuant to s. 185(3)(b) of the Act, I consider it fair to extend the period of time to make the application until the date that it was lodged by the applicant.

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 employees are entitled to base rates of pay which are between 16-28% higher than the Award rates and an annual leave loading of 25%.

Interaction of Agreement with the Award – overtime and penalty rates

[7] The Commission wrote to the applicant on 29 August 2016 seeking clarification on the rates to be paid to employees who work hours additional to their ordinary hours and on weekends and public holidays. The rates are not provided in the Agreement.

[8] The applicant, by reply email, confirmed that clause 5 of the Agreement is to be read in conjunction with the Award and that employees, if required to work outside their ordinary hours or on weekends or public holidays, would be paid penalty rates in accordance with the Award.

Conclusion

[9] Taking into account the higher rates of pay and increased annual leave loading 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.

[10] While the application states that the TWU was a bargaining representative, no F18 supporting or opposing the approval of the Agreement has been filed by the TWU.

[11] 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.

[12] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 29 September 2016. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, AE420845  PR584803>