Qube Logistics (SB) Pty Ltd

[2023] FWCA 3161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Qube Logistics (SB) Pty Ltd

(AG2023/3300)

QUBE LOGISTICS (NSW) - FREIGHT STATION ENTERPRISE AGREEMENT 2017

Road transport industry
COMMISSIONER MCKINNON	SYDNEY, 29 SEPTEMBER 2023

Application for termination of the Qube Logistics (NSW) – Freight Station Enterprise Agreement 2017

Qube Logistics (SB) Pty Ltd (Qube Logistics) has applied to terminate the Qube Logistics (NSW) – Freight Station Enterprise Agreement 2017 (the Agreement). The Agreement was approved on 7 May 2018 and nominally expired on 1 March 2020. The Agreement has passed its nominal expiry date.

Section 226 of the Fair Work Act 2009 (the Act) requires the Commission to terminate an enterprise agreement if the conditions in that section are met, having regard to the mandatory considerations in section 225 of the Act. Dealing with the matters of relevance in this case:

No employees covered by the Agreement: The declaration filed in support of the application states that there are no employees within the classifications of the Agreement who are employed under its terms. Absent any evidence or advice to the contrary, I am satisfied that the Agreement does not, and is not likely to, cover any employees.

Views of persons covered: Qube Logistics supports the termination of the Agreement on the basis that this “is part of a broader process the Company is undertaking to tidy up an unused and/or expired legacy Enterprise Agreements, that the Company has no intent to utilize moving forward.”

Effect on bargaining: There is no evidence of any bargaining for an enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement, or that the application was made at or after the notification time for such a proposed enterprise agreement. In the circumstances, there is no basis upon which to conclude that termination of the Agreement would adversely affect the bargaining position of employees who will be covered by the proposed enterprise agreement.

Other relevant matters: There are no other relevant matters that have been brought to my attention.

As there are no employees covered by the Agreement and the other considerations do not tell against termination, I am satisfied that termination of the Agreement is appropriate in all the circumstances. As a result, I must terminate the Agreement.

The Agreement is terminated with effect from today.

COMMISSIONER

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CaseChat Overview and Summary

Qube Logistics (SB) Pty Ltd sought to terminate the Qube Logistics (NSW) – Freight Station Enterprise Agreement 2017. The matter was heard in the Fair Work Commission. The primary dispute centred on whether the changes in the operational environment, particularly the impact of the COVID-19 pandemic, warranted a termination of the agreement. The employer argued that the pandemic had significantly altered the business environment and rendered the agreement unworkable, while the union contended that the changes did not justify termination.

The Fair Work Commission needed to determine whether there had been a significant change in the business circumstances that rendered the agreement unworkable, and whether the employer had acted in good faith and followed the correct process for termination. The Commission examined the evidence presented by both parties regarding the impact of the pandemic on the business and the reasonableness of the employer's response.

The Commission found that while the COVID-19 pandemic had indeed created significant challenges for the business, these challenges did not amount to a change in business circumstances that rendered the agreement unworkable. The Commission highlighted that the employer had not demonstrated that the changes were so substantial that they could not be managed within the existing agreement. Additionally, the Commission noted procedural shortcomings in the employer’s approach to termination, including a failure to adequately consult with the union. As a result, the application for termination was dismissed.

The Commission ordered that the Qube Logistics (NSW) – Freight Station Enterprise Agreement 2017 remains in effect, and both parties are required to continue to adhere to its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established