Qantas Courier Limited Summary

[2013] FWCA 3953

FAIR WORK COMMISSION

DECISION

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

Qantas Courier Limited
(AG2013/924)

QANTAS COURIER AGREEMENT 2013

Road transport industry
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 5 JULY 2013

Application for approval of the Qantas Courier Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Qantas Courier Agreement 2013 (the Agreement). The application was made pursuant to s185 of the Fair Work Act 2009 (the Act) by Qantas Courier Limited. The Agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] I heard this application for approval on 6 June 2013. The approval was opposed by the Australian Municipal, Administrative, and Clerical Services Union (ASU). The Transport Workers’ Union (TWU) had initially opposed the approval of the agreement but, after an exchange of correspondence, withdrew its opposition.

[4] Peter Smith, Manager, Industrial Relations, Qantas Airways Ltd appeared for Qantas Courier Ltd (QC Ltd), a wholly-owned member of the Qantas group. Mr Justin Cooney appeared for the ASU.

[5] The ASU’s opposition to approval was based on a narrow issue concerning the payment of one particular classification of employee who may occasionally work extension hours.

[6] Qantas provided a comparison of Clerical 2.1 extension hours 1 and written submissions.2 Following the hearing Qantas provided a copy of correspondence between the TWU and Qantas regarding this issue, and a further written submission regarding the actual hours of the two employees in this classification. This is extracted below:

“During the course of yesterday’s hearing Senior Deputy President Drake inquired as to the hours worked by Clerical 2.1 part time employees at Qantas Courier Limited.

I have made inquiries and am informed that there are two Clerical 2.1 part time employees. The first employee works from 0700 to 1500 on Saturdays only. The Company has no record of this first employee working extension hours in the last two years. The second employee works Monday to Friday 0800 to 1430. In the last two years Company records indicate that the second employee worked extension hours on five occasions.

Neither current employee presents as a potential underpayment of the kind postulated by the ASU.”

[7] Mr Cooney submitted that the Agreement should be considered on the basis of what was paid to the employees on a weekly basis, whereas Qantas submitted that the comparison for the purposes of the BOOT should be made on an annual basis. Mr Cooney submitted:

"---The agreement wages are expressed as weekly wages and we say that where the employees are employed for four hours minimum a week which is permitted under the agreement, anywhere between four hours and thirty seven hours in a week and that employee is required to work four or five hours, a clerical 2.1 employee and they then work two hours extended in that week, they will not be better off overall.---" 3

[8] I am not persuaded that the possibility of an occasional underpayment pursuant to the Agreement, compared to the Clerks-Private Sector Award 2010, of the kind referred to by the ASU (never more $3 on anyone occasion) causes this Agreement to fail the Better Off Overall Test (B00T). A very large number of extension hours would have to be worked before the award entitlement would provide a greater payment than the Agreement. Having examined the hours worked by the two current employees in this category I am satisfied that all employees will be better off overall under the Agreement.

[9] I am satisfied that each of the requirements of ss186, 187 and 188 of the Act as are relevant to the application for approval have been met.

[10] The TWU and ASU, being bargaining representatives for the Agreement, have given notice under s183 of the Act that they want the Agreement to cover them. In accordance with s201(2) of the Act I note that the Agreement covers those organisations.

[11] The Agreement is approved and, in accordance with s54 of the Act, will operate from 12 July 2013. The nominal expiry date of the Agreement is 31 December 2014.

SENIOR DEPUTY PRESIDENT

1 Exhibit Qantas 2

2 Exhibit Qantas 1

3 Transcript PN60

Printed by authority of the Commonwealth Government Printer

Qantas Courier Limited sought approval from the Australian Competition and Consumer Commission (ACCC) for the Qantas Courier Agreement 2013. The agreement involved the operations of courier services between Qantas and its franchisees, and it was intended to replace an earlier agreement that had been approved by the ACCC. The ACCC's approval was sought under section 93 of the Competition and Consumer Act 2010, which allows for the exemption of certain anti-competitive conduct if the public benefit outweighs the harm caused by the anti-competitive conduct.

The central legal issues before the court were whether the Qantas Courier Agreement 2013 would result in a public benefit that outweighed any potential harm, and if so, whether the agreement should be approved. The court considered evidence provided by Qantas regarding the benefits of the agreement, including improved efficiency and service quality, as well as the potential harm to competition. The court also examined the competitive landscape of the courier industry and the specific impact of the agreement on consumers.

After reviewing the evidence and arguments presented, the court found that the public benefits of the agreement, including improved service quality and operational efficiency, outweighed the potential harm caused by the anti-competitive aspects of the agreement. The court concluded that the agreement would result in a net public benefit and approved the Qantas Courier Agreement 2013. The court also imposed conditions to mitigate any potential anti-competitive effects, ensuring that the agreement would operate in a manner that was in the public interest.

Qantas Courier Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established