National Fleet Administrative Services Pty Ltd T/A Kings Transport & Logistics (SA) P/L

[2020] FWCA 493

[2020] FWCA 493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Fleet Administrative Services Pty Ltd T/A Kings Transport & Logistics (SA) P/L
(AG2019/5018)

NATIONAL FLEET ADMINISTRATIVE SERVICES P/L: SA COMPANY DRIVERS ENTERPRISE AGREEMENT 2019

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 31 JANUARY 2020

Application for approval of the National Fleet Administrative Services P/L: SA Company Drivers Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the National Fleet Administrative Services P/L: SA Company Drivers Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by National Fleet Administrative Services Pty Ltd T/A Kings Transport & Logistics (SA) P/L. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 January 2020.

[3] On 21 January 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 29 January 2020. The undertaking deals with the following topics:

•  Clause 29.1(b) of the Road Transport and Distribution Award 2010 (the Award) will be included as the definition of a shift worker for the purposes of the National Employment Standards (NES).

•  Full-time and Part-time employees are entitled to 4 weeks annual leave for each year of service, such entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.

•  Clause 21.1 (Entitlements on Termination) will not operate to reduce an employee’s entitlements under s.90(2) of the Act.

•  Full-time and Part-time employees are entitled to 10 days paid personal leave per year, such entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.

•  Once paid personal leave entitlements have been exhausted, all employees are then entitled to 2 days of unpaid carer’s leave for each permissible occasion when a member of the ​employee​’s ​immediate family​, or a member of the ​employee​’s household, requires care or support because of a personal illness, personal injury or unexpected emergency affecting the member.

•  Clause 24.3 (Personal Leave) will not operate to reduce an employee’s entitlements under s.97(b)(i) of the Act.

•  Clause 24.3 (Inability to Attend for Work) will not impose any evidence requirements that are inconsistent with s.107(3) of the Act.

•  In relation to clause 21.1 (Entitlements on Termination), if an employee fails to give the required notice, the Applicant may withhold from any wages due to the employee on termination, an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice required by the clause less any period of notice actually given by the employee.

•  Nothing in clauses 21.1 (Entitlements on Termination), 28 (Uniforms) and 29 (Company Property) will operate in a manner inconsistent with ss.324, 325 and 326 of the Act.

•  In relation to clause 23 (Redundancy), s.389(1)(a) of the Act will be held to be the definition for a genuine redundancy and nothing in the clause will operate to reduce the notice requirements under clause 21 of the Agreement. The protections outlined in clauses 14.1 and 14.2 of the Award will be applicable.

•  In relation to clause 20 (Overtime), nothing in the clause will operate to reduce an employee’s entitlements under clauses 26.2(a) and 27.6 of the Award. The entitlements under clauses 27.3, 27.4 and 27.5 of the Award will be included in the Agreement.

•  In relation to clause 5 (Scope), paragraph 2 is withdrawn form the Agreement.

•  Clause 19 (Public Holidays) will not operate in a manner that would reduce an employee’s entitlements under clause 28.2(b)(d) of the Award and the NES.

•  Clause 24.1 (Annual Leave) will not operate to reduce the entitlements under clause 29.2(b) of the Award and the NES.

•  Clause 15 (Superannuation) will not operate to reduce the entitlements under clause 21.5(b) of the Award.

•  The allowances under clause 16.4(a)(d) (work diary reimbursement and medical checks) and clause 19 (higher duties allowances) of the Award is included in the Agreement. The entitlements under Schedule C of the Award will also be included in the Agreement.

•  In relation to clause 21.1 (Entitlements on Termination), job search leave entitlements under clause 13.2 of the Award will be included in the Agreement.

•  Clause 29 (Company Property) will not operate to reduce an employee’s entitlements under s.323 of the Act.

•  In relation to clause 37.4 (Juniors), the minimum rate to be paid to junior employees:

•  under 19 years of age is 70% of the base wage payable to an adult for the class of work performed as provided by clause 37;

•  19 years and under 20 years of age is 80% of the base wage payable to an adult for the class of work performed as provided by clause 37;

•  20 years of age is the full rate payable to an adult for the class of work performed as provided by clause 37.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 January 2023.

COMMISSIONER

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