Neway Holdings Pty Ltd T/A Neway Transport

[2016] FWCA 1465

[2016] FWCA 1465

FAIR WORK COMMISSION

DECISION

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

Neway Holdings Pty Ltd T/A Neway Transport
(AG2016/2256)

NEWAY TRANSPORT ENTERPRISE AGREEMENT NSW 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 8 MARCH 2016

Application for approval of the Neway Transport Enterprise Agreement NSW 2016

[1] An application has been made by Neway Holdings Pty Ltd trading as Neway Transport (the applicant) for the approval of an enterprise agreement known as the Neway Transport Enterprise Agreement NSW 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers employees engaged by the employer as transport workers within the applicant’s Metropolitan area of Sydney. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational and geographical distinction of the employees.

[3] The Transport Workers’ Union of Australia, NSW Branch (TWU) being a bargaining representative for the Agreement has applied under s.185 of the Act for the approval of the Agreement.

Consultation term

[4] The consultation term contained at cl.48 of the Agreement, does not meet the requirements under ss.205(1)(a) of the Act. In particular, the term does not require the employer to consult employees with regard to a change of employee’s regular roster or ordinary hours of work.

[5] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model term is attached at Annexure A of this decision.

Flexibility Term

[6] The flexibility term at cl.27 of the Agreement does not meet the requirements of s. 203(2)(b) of the Act.  The term does not require an individual flexibility arrangement to be about permitted matters and to not include unlawful terms.

[7] Pursuant to s. 203(2)(b) of the Act, the model consultation term at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model tem is attached at Annexure B of this decision.

Better Off Overall Test (BOOT)

[8] The Road Transport and Distribution Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[9] The rates of pay under the Agreement are significantly higher than the corresponding minimum rates of pay under the Award.

Annual leave loading

[10] At cl.23(b) of the Agreement, it states that no leave loading is payable if leave is taken within the first 12 months of employment. However, at cl.29.2 of the Award, annual leave loading payment is payable on annual leave accrued and taken.

[11] At the request of the Commission, the applicant has provided an undertaking that is in line with the annual leave loading payment provision of the Award. The undertaking is taken to be a term of the Agreement and is attached at Annexure C of this decision.

Approval

[12] Taking into account the higher rates of pay under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[13] 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.

[14] The TWU has given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 15 March 2016. The nominal expiry date of the Agreement is 1 January 2019.

DEPUTY PRESIDENT

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Annexure A

Annexure B

Annexure C