Primeline Contracting Pty Ltd T/A Hi-Trans Express

[2022] FWCA 1752

[2022] FWCA 1752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Primeline Contracting Pty Ltd T/A Hi-Trans Express

(AG2022/1353)

Primeline Contracting Pty Ltd Local Drivers & Forklift Employees' Enterprise Agreement 2014

Road transport industry
COMMISSIONER HAMPTON	ADELAIDE, 30 MAY 2022

Application for termination of the Primeline Contracting Pty Ltd Local Drivers & Forklift Employees' Enterprise Agreement 2014.

1. This decision concerns an application by Primeline Contracting Pty Ltd T/A Hi-Trans Express (Hi-Trans Express or the Applicant) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Primeline Contracting Pty Ltd Local Drivers & Forklift Employees' Enterprise Agreement 2014 (the Agreement). The Agreement was approved by the Commission on 12 November 2014.[1] The Agreement commenced operation on 19 November 2014 and has a nominal expiry date of 19 November 2017. The Transport Workers’ Union of Australia (TWU) is also covered by the Agreement.

1. A hearing by telephone was conducted in this matter on 30 May 2022. At the conclusion of that hearing, I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

1. The FW Act relevantly provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

1. Hi-Trans Express is a national transport company with local and interstate operations. The Agreement applies to its Local Drivers and Forklift Operators based at its Adelaide (Athol Park) depot

1. The application was accompanied by a statutory declaration of Ms Linda Marrone, Hi-Trans Express’ General Manager – People, Safety & Culture, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included contentions to the following effect:

·When the Agreement was made, the Adelaide depot did not involve work on weekends, afternoon or night shifts and these arrangements were not expressly comprehended in the Agreement. These shifts are now being worked and under the terms of the Agreement, the relevant modern award provisions apply.

·Given the terms of the Agreement, staff covered by that instrument are entitled a (higher) “flat” rate up until 50 hours per week with the overtime involved being incorporated into the rates. However, the combination of arrangements creates a disparity in rates and working conditions.

·Hi-Trans Express seeks to engage all applicable staff under the Road Transport & Distribution Award 2020 across all national locations to ensure consistency and inclusion of weekend and shift rates, the application of allowances and overtime rates after 38 ordinary hours.

1. Given the status of the Agreement, Hi-Trans Express is entitled to apply for its termination pursuant to s.225 of the FW Act.

1. In the lead up to the hearing of this matter, directions were issued requiring Hi-Trans Express to ensure that the affected employees were aware of this hearing and provide details for any affected employee to contribute to the Commission about the application. There has been no contact from any employee opposing this application.

1. Mr Simon Russell, on behalf of the TWU, appeared in the matter and advised that the Union supported the application and the proposed new arrangements. Given this fact and the import of the declaration of Ms Marrone, I am satisfied that all affected parties support, or at least do not oppose, the application.

1. During the hearing I invited Hi-Trans Express to confirm the proposed future treatment of the higher (base) rates of pay currently provided under the Agreement. Ms Marrone provided a formal undertaking to the Commission that the Agreement rates of pay will be maintained (and adjusted in line with modern award increases) and be utilised for the 38 ordinary hours under the Award. I have accepted that undertaking which was also supported by the TWU.

1. I consider that in light of the operations now being undertaken by Hi-Trans Express at its Adelaide depot and having regard to the terms of the Agreement and the Award, the interests of the employees affected by this application and the Applicant will be best served by reverting to the Award.

1. Having had regard to the material provided with the application and the undertaking given at the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, I find that it is appropriate in all of the circumstances, including having regard to the views of the employer, employees and the TWU, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

1. The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 27 June 2022.

COMMISSIONER

[1] [2014] FWCA 8043

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