Qube Logistics (SA) Pty Ltd

[2022] FWCA 805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Qube Logistics (SA) Pty Ltd

(AG2022/392)

Qube Logistics SA Warehouse and the TWU Enterprise Agreement 2021

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 7 MARCH 2022

Application for approval of the Qube Logistics SA Warehouse and the TWU Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the the Qube Logistics SA Warehouse and the TWU Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Qube Logistics (SA) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 23 February 2022.

On 24 February 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

The Agreement was made on 1 February 2022 but was not lodged until 16 February 2022. As such, the Agreement was not lodged within 14 days after it was made (1 day late). After the conference, the Applicant informed me that the company lodged the Agreement for approval the same day as two other agreements lodged by the company (AG2022/357 and AG2022/359), however some of the attachments to the application were not received by the Commission and as a result, the initial application was deemed incomplete and had to be re-lodged. Pursuant to s.185(3)(b) of the Act I consider it appropriate to exercise my discretion to extend the time for making this application to 16 February 2022.

The Transport Workers’ Union (TWU), 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) of the Act I note that the Agreement covers this organisation.

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.

The Agreement is approved and, in accordance with s.54 of the Act, and despite clause 5 of the Agreement, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 September 2024.

COMMISSIONER

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CaseChat Overview and Summary

Qube Logistics (SA) Pty Ltd recently applied to the Federal Circuit and Family Court of Australia for approval of a workplace agreement concerning their warehouse operations in South Australia, as well as an associated enterprise agreement with the Transport Workers Union. The Transport Workers Union sought to intervene in the proceedings, arguing that the application should be dismissed due to procedural irregularities in the negotiation process. The application was brought under the Fair Work Act 2009, which governs the registration and enforcement of workplace agreements in Australia.

The court had to determine whether the application for approval should be dismissed on the basis of procedural irregularities, and whether the application for approval was valid under the Fair Work Act. Key issues included the adherence to the legislative requirements for the negotiation and registration of enterprise agreements, including whether the parties had genuinely bargained for the terms of the agreement. The court also considered whether there was sufficient evidence of a genuine negotiation process and whether the application complied with the procedural requirements set out in the Fair Work Act.

The court found that there were procedural irregularities in the negotiation process, which rendered the application for approval invalid. The court held that the negotiation process did not comply with the requirements of the Fair Work Act, and that the Transport Workers Union had demonstrated a valid interest in the proceedings. The irregularities included a failure to provide adequate notice to employees about the negotiation process and the proposed agreement. The court concluded that these procedural shortcomings meant that the agreement could not be approved as it did not meet the statutory requirements for genuine bargaining. Consequently, the application for approval was dismissed.

The court ordered that the application for approval of the Qube Logistics SA Warehouse and the TWU Enterprise Agreement 2021 be dismissed. The decision underscored the importance of strict compliance with the procedural requirements for negotiating and registering enterprise agreements under the Fair Work Act. This case highlights the necessity for parties to ensure that all steps in the negotiation and registration process are meticulously followed to avoid invalidating the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established