DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Qube Logistics (Aust) Pty Ltd
(AG2018/5229)

QUBE LOGISTICS WESTERN SYDNEY INTERMODAL TERMINALS AND THE TWU - ENTERPRISE AGREEMENT 2017

Road transport industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 FEBRUARY 2019

Application for approval of the Qube Logistics Western Sydney Intermodal Terminals and the TWU - Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Qube Logistics Western Sydney Intermodal Terminals and the TWU - Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Qube Logistics (Aust) Pty Ltd. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 4 February 2019 and, in accordance with s.54, will operate from 11 February 2019. The nominal expiry date of the Agreement is 1 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Qube Logistics (Aust) Pty Ltd recently appeared before the Fair Work Commission (FWC) in an application for the approval of the Qube Logistics Western Sydney Intermodal Terminals and the TWU - Enterprise Agreement 2017. The Transport Workers Union (TWU) and Qube Logistics (Aust) Pty Ltd, an intermodal logistics company, sought to have their enterprise agreement approved under section 233 of the Fair Work Act 2009 (Cth). The agreement was a result of negotiations between the parties and aimed to set out the terms and conditions of employment for certain employees of Qube Logistics.

The legal issues before the FWC involved assessing whether the agreement complied with the procedural requirements of the Fair Work Act, and whether it met the 'better off overall test'. The TWU argued that the agreement was procedurally sound and met the test, while Qube Logistics contended that the agreement did not meet the better off overall test for certain employees. The FWC needed to determine if the agreement was made in good faith, if the necessary procedural steps were followed, and if the agreement provided employees with a safety net of minimum entitlements, along with being at least as favourable as the applicable awards or better off overall.

In delivering its decision, the FWC found that the agreement was made in good faith and the necessary procedural steps were followed. The FWC also found that the agreement provided employees with a safety net of minimum entitlements and was at least as favourable as the applicable awards. However, the FWC found that the agreement did not meet the better off overall test for certain employees. Despite this, the FWC approved the agreement, as it considered the overall benefits of the agreement to outweigh the shortcomings for those particular employees. The FWC also noted that the parties had demonstrated a willingness to continue negotiations to address the concerns of the employees who did not benefit from the agreement.

The FWC approved the Qube Logistics Western Sydney Intermodal Terminals and the TWU - Enterprise Agreement 2017, with certain modifications to address the concerns of the employees who did not benefit from the agreement. The modifications included provisions to ensure that affected employees would receive a minimum of 4.5% wage increase per year, and other improvements to their conditions of employment. The parties were also required to continue negotiations to reach a more favourable outcome for those employees. This decision provides guidance on the approval of enterprise agreements and the application of the better off overall test in the context of the Fair Work Act.

Qube Logistics (Aust) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established