Naismith Group of Companies Pty Ltd T/A Naismith Truck Movers

[2024] FWCA 3818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Naismith Group of Companies Pty Ltd T/A Naismith Truck Movers

(AG2024/3315)

NAISMITH TRUCK MOVERS ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER ALLISON	MELBOURNE, 31 OCTOBER 2024

Application for approval of the Naismith Truck Movers Enterprise Agreement 2024

Naismith Group of Companies Pty Ltd T/A Naismith Truck Movers (Naismith) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Naismith Group of Companies Pty Ltd T/A Naismith Truck Movers (the Agreement).

BOOT Concerns - Rates for Employees engaged in Long Distance Vehicle Relocation

The Agreement applies to all employees of Naismith who perform work within the coverage of the Road Transport (Long Distance Operations) Award 2020 (Long Distance Award) or the Road Transport and Distribution Award 2020 (RTD Award). The Awards are largely incorporated into the Agreement. However, the Agreement provides that employees who undertake Long Distance Vehicle Relocation, and who would usually be covered by the RTD Award, will be covered by the Long Distance Award for certain key entitlements. In summary, under the Agreement, employees undertaking Long Distance Vehicle Relocation work will receive a higher hourly rate (in accordance with the Long Distance Award) than what they would receive under the RTD Award, but will not receive certain shift work and penalty rates.

Naismith submits that they wish to pay their employees engaged in Long Distance Vehicle Relocation at the higher Long Distance Award rate, which would compensate them “at a significantly higher hourly rate of pay Monday to Friday, than what they would normally receive on the lower paying RTD Award.”

I agree that employees engaged in Long Distance Vehicle Relocation will be better off Monday to Friday under the Agreement. However, Naismith currently only engages casual employees. Casual employees who either only work on weekends, or predominantly work on the weekends, will not be better off under the Agreement. To address this issue Naismith has provided an undertaking that any casual employees engaged in long distance vehicle relocation performing work:

on a Saturday or Sunday; or
on any two or more consecutive days between Friday to Monday inclusive

will be paid not less than the applicable rates and any applicable penalties under the RTD Award according to their classification. (See undertaking at Appendix A).

In addition, Naismith provided undertakings increasing the travel time rates for employees engaged in Long Distance Vehicle Relocation to be equal to or above equivalent RTD Award rate.

I am satisfied that these undertakings address my concerns regarding rates for employees engaged in Long Distance Vehicle Relocation.

BOOT Concerns - Other Matters

The rates of pay for permanent Grade 6, 7, 8, and 9 Transport Workers under the Agreement were below the rates provided in the Road Transport and Distribution Award 2020 (RTD Award). Naismith provided undertakings increasing the rates of pay to resolve this issue.

The Agreement is silent in relation to afternoon and night shift penalties, which are contemplated in the RTD Award. Naismith provided an undertaking that it does not perform any shiftwork for the purposes of the RTD Award, and that it will not require its employees to perform any shiftwork for the purposes of the RTD Award during their employment.

A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Other Matters

The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Naismith Road Transport Enterprise Agreement 2024” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2024. The nominal expiry date of the Agreement is 1 August 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Naismith Group of Companies Pty Ltd, trading as Naismith Truck Movers, applied to the Fair Work Commission for approval of the Naismith Truck Movers Enterprise Agreement 2024. The dispute centred on the terms and conditions of employment for the company’s employees, as outlined in the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement provided for the fair and efficient determination of terms and conditions of employment. This required consideration of whether the agreement was made in good faith, whether it included appropriate mechanisms for resolving disputes, and whether it met the procedural requirements for approval as stipulated by the Act. Additionally, the Commission had to consider whether the agreement was consistent with the National Employment Standards and other applicable awards and agreements.

In assessing the application, the Commission examined the negotiation process and the content of the agreement. It found that the agreement was the product of genuine bargaining between the employer and the employees' representatives. The Commission noted that the agreement contained provisions that were fair and reasonable, covering a range of employment terms including wages, leave entitlements, and working conditions. The Commission also concluded that the agreement was procedurally sound and met all the requirements for approval under the Act. Consequently, the Commission approved the Naismith Truck Movers Enterprise Agreement 2024.

The Fair Work Commission's decision to approve the Naismith Truck Movers Enterprise Agreement 2024 is final and binding. The agreement will now govern the terms and conditions of employment for the employees of Naismith Group of Companies Pty Ltd, trading as Naismith Truck Movers, as from the effective date specified in the agreement.

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