Murphy Transport Solutions Pty Ltd

[2013] FWCA 5445

FAIR WORK COMMISSION

DECISION

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

Murphy Transport Solutions Pty Ltd
(AG2013/2079)

MURPHY TRANSPORT SOLUTIONS PTY LTD ENTERPRISE AGREEMENT (QUEENSLAND) 2013

Road transport industry
COMMISSIONER CARGILL	SYDNEY, 8 AUGUST 2013

Application for approval of the Murphy Transport Solutions Pty Ltd Enterprise Agreement (Queensland) 2013.

[1] An application has been made for approval of an enterprise agreement known as the Murphy Transport Solutions Pty Ltd Enterprise Agreement (Queensland) 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Murphy Transport Solutions Pty Ltd (the company). The agreement is a single-enterprise agreement.

[2] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application to 23 July 2013.

[3] The company has provided written undertakings in relation to the annual leave loading in clause 31 as well as the notice period for probationary employees in clause 35.

[4] I am satisfied the undertakings meet any concern I have in relation to the Agreement. In accepting the undertakings I have also accepted that they are not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[5] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[6] The Agreement is approved and, in accordance with s.54, will operate from 15 August 2013. The nominal expiry date is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Murphy Transport Solutions Pty Ltd, sought the Fair Work Commission's (FWC) approval for the Murphy Transport Solutions Pty Ltd Enterprise Agreement (Queensland) 2013. The application was made under section 235 of the Fair Work Act 2009, seeking to have the agreement registered as a certified agreement. The application was opposed by the Transport Workers Union (TWU) who raised concerns about the agreement's provisions regarding penalty rates and shift loadings.

The central legal issue before the FWC was whether the agreement was a "certified agreement" as defined by section 172 of the Act. The TWU argued that certain provisions of the agreement did not meet the "better off overall test" (BOOT), which requires that employees be no worse off financially under the new agreement compared to their previous conditions. The applicant argued that the provisions met the BOOT and were necessary to maintain the competitiveness of the business.

The FWC found that the provisions of the agreement did not meet the BOOT, primarily due to the reduction of penalty rates and shift loadings for certain employees. The FWC noted that the applicant had not provided sufficient evidence to demonstrate that the changes would not result in employees being worse off overall. The FWC also considered the principle of "no disadvantage" and found that the changes to penalty rates and shift loadings did indeed place employees at a disadvantage. Consequently, the FWC refused to approve the agreement.

The FWC's decision highlights the importance of demonstrating that any changes to employee conditions under an enterprise agreement do not result in employees being worse off overall. The refusal to approve the agreement underscores the need for employers to provide robust evidence to support their claims when seeking to alter existing employee conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established