Point2point Pty Ltd T/A Point2point

[2022] FWCA 4545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Point2point Pty Ltd T/A Point2point

(AG2022/5158)

Point 2 Point Secure (QLD) Agreement 2022

Road transport industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 21 DECEMBER 2022

Application for approval of the Point 2 Point Secure (QLD) Agreement 2022

An application has been made for approval of an enterprise agreement known as the Point 2 Point Secure (QLD) Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 28 December 2022. The nominal expiry date of the Agreement is 15 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Point2point Pty Ltd T/A Point2point applied to the Fair Work Commission for approval of the Point 2 Point Secure (QLD) Agreement 2022, which was proposed to be a Registered Agreement under the Fair Work Act 2009. The application was opposed by the Retail and Fast Food Workers Union of Australia (Vic,ACT, NSW Branch), which argued that the agreement was not intended to be made and did not genuinely seek to facilitate agreement. The Commission, represented by Commissioner Robertson, was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act.

The primary legal issue before the Commission was whether the proposed agreement genuinely sought to facilitate a bona fide agreement between the parties. The Commission examined the process by which the agreement was formed and considered the evidence presented by both Point2point and the union. The union argued that the agreement was not a genuine attempt to reach a consensus, citing the absence of meaningful negotiation and the union's exclusion from the process. Point2point, on the other hand, maintained that the agreement was a genuine effort to resolve workplace issues and improve working conditions.

The Commission found that the proposed agreement did not genuinely seek to facilitate a bona fide agreement between the parties. The evidence indicated that the union was not given an opportunity to participate in the negotiation process, and the agreement was imposed rather than collaboratively developed. The Commission concluded that the agreement failed to meet the statutory requirements for approval, and thus, the application was dismissed. The decision emphasised the importance of genuine negotiation and the need for both parties to engage in a meaningful process to reach a consensus.

The Fair Work Commission dismissed the application for approval of the Point 2 Point Secure (QLD) Agreement 2022, finding that it did not genuinely seek to facilitate a bona fide agreement. The decision underscores the necessity of genuine negotiation and the active involvement of all parties in the agreement process. The dismissal of the application highlights the Commission's commitment to ensuring that agreements are made in accordance with the principles of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established