Paramount Freightlines Pty Ltd

[2016] FWCA 7653

[2016] FWCA 7653

FAIR WORK COMMISSION

DECISION

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

Paramount Freightlines Pty Ltd
(AG2016/4319)

DRIVER AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 7 NOVEMBER 2016

Application for approval of the Driver Agreement 2016 – agreement approved with undertakings

[1] An application has been made by Paramount Freightlines Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Driver Agreement 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 operational employees of the applicant who fall within the classifications contained within the Agreement at clause 8.2. The Agreement does not cover administrative or managerial staff. 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 19 August 2016, 21 days after the Agreement was made on 29 July 2016. Section 185(3)(a) of the Act requires that an application for approval of an Agreement be made within 14 days after an Agreement is made.

[4] The applicant’s representative, Mr Daniel Houlihan, explained to the Commission that the applicant was lodged late due to the failure of Mr Houlihan to prepare the application documents in time.

[5] Mr Houlihan requested that the Commission extend the time for lodgement of the application on the following basis;

● It was not the fault of the applicant but the applicant’s representative; and

● No employee was denied an opportunity to participate in the making of the Agreement because the composition of the workforce between the date of the vote and the lodgement of the application has not changed.

[6] In the circumstances I consider the late lodgement a case of representative error, and pursuant to s. 185(3)(b) of the Act, I believe it fair to extend the period of time to make the application until the actual date of lodgement.

Shiftworkers

[7] The Commission wrote to the applicant noting that at clause 14.3 of the Agreement a shiftworker is entitled to an extra weeks’ leave under the NES when they work on a “7 day week 24 hour rotating basis.” The Commission was concerned that the definition is inconsistent with the Road Transport Distribution Award 2010 (RTD Award) definition at clause 29.1(b). Under the RTD Award a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays. The Agreement definition appeared to be more onerous than the definition in the Award.

[8] The applicant has provided an undertaking that for the purposes of an additional week of annual leave, shiftworkers will be defined in accordance with the RTD Award. The Agreement definition will continue to apply to employees engaged to perform long distance operations. The Commission notes that the Road Transport (Long Distance Operations) Award 2010 (LDO Award) does not define a shiftworker for the purpose of an additional week of annual leave, although it is noted that the industry disability allowance at clause 14.1 of the LDO Award includes shiftwork and related conditions.

Better off overall test (BOOT)

[9] In its correspondence to the applicant, the Commission noted that the Agreement contains a number of provisions that may leave some employees worse off under the Agreement than under the RDO Award and the LDO Award, being the relevant modern awards for the purpose of the better off overall test.

Loading and unloading allowance

[10] The Commission wrote to the applicant, drawing attention to clause 13.6 of the RDO Award, which provides that employees are to be paid an allowance for engaging in loading and unloading duties.  Clause 13.6 states that employees are to be paid an hourly rate or a fixed allowance based on an hourly rate when engaged in loading and unloading. The Commission noted that the Agreement provides no equivalent entitlement to employees in those circumstances.

[11] The applicant wrote to the Commission assuring it that its business is concerned only with the transport of containers, and as such, employees of the applicant are not required to engage in the loading and unloading of containers.

[12] The Commission accepted that although that may be the case, in any event such an assurance must form part of the Agreement to be enforceable. The Commission requested the applicant provide an undertaking that employees covered by the Agreement would not be required to perform loading and unloading duties.

[13] The applicant has provided an alternative undertaking that if a driver is required to perform loading or unloading duties, they shall be paid an allowance of $20.00 for each time so engaged.

Breakdowns and impassable highways

[14] The Commission wrote to the applicant, drawing its attention to clause 22 of theLDO Award which addresses how employees are remunerated when encountering delays, breakdowns and impassable highways and noting that the Agreement provides no equivalent entitlement to employees in those circumstances.

[15] The applicant has provided an undertaking that employees will be paid in accordance with the LDO Award in circumstances where a delay is caused by breakdowns and impassable highways, provided that the employee takes all reasonable steps to minimise the period of delay.

Rostered days off (RDOs)

[16] The Commission wrote to the applicant noting that employees covered by the LDO are entitled to rostered days off (RDOs) under clause 20.5 and that there does not appear to be any equivalent entitlement under the Agreement.

[17] The applicant, in response, submitted that the Commission could be satisfied that despite the loss of RDOs under the Agreement, employees would be better off overall due to a significant increase to the value of the guaranteed fortnightly minimum under the Agreement. The applicant provided calculations demonstrating that the guaranteed fortnightly minimum is well in excess of the RDO entitlement provided for in the LDO.

[18] The Commission is satisfied that the benefit conferred by the increased guaranteed fortnightly minimum compensates employees for the loss of the entitlement to RDOs.

Conclusion

[19] Taking into account the higher base rates of pay and the undertakings and submissions provided by the applicant I am satisfied that the Agreement results in employees being better off under the Agreement.

Undertakings

[20] The undertakings are taken to be a term of the Agreement and a copy is attached and marked Annexure A. The undertakings are not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[21] 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.

[22] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 7 November 2020.

DEPUTY PRESIDENT

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Annexure A