DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Qube Logistics (SB) Pty Ltd T/A Qube Logistics
(AG2017/6089)

QUBE LOGISTICS MINTO WAREHOUSE AND YENNORA SHEDS 5 & 6 AND THE TWU- ENTERPRISE AGREEMENT 2017

Road transport industry
COMMISSIONER MCKINNON	MELBOURNE, 13 APRIL 2018

Application for approval of the Qube Logistics Minto Warehouse & Yennora Sheds 5 & 6 and the TWU - Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Qube Logistics Minto Warehouse & Yennora Sheds 5 & 6 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 (SB) Pty Ltd T/A Qube Logistics. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[5] 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.

[6] 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) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April 2018. The nominal expiry date of the Agreement is 1 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Qube Logistics (SB) Pty Ltd applied to the Fair Work Commission for approval of the Qube Logistics Minto Warehouse & Yennora Sheds 5 & 6 and the TWU - Enterprise Agreement 2017. The Transport Workers Union opposed the application on the basis that the enterprise agreement contained provisions that were contrary to public policy, were harsh, and were unfair. The dispute came before the Commission, which was required to determine whether the enterprise agreement was suitable for approval.

The legal issues for the Commission's determination were whether the provisions of the enterprise agreement were contrary to public policy, were harsh, or were unfair. The Commission found that none of the provisions in the enterprise agreement were contrary to public policy or were harsh. However, the Commission found that the provisions in the enterprise agreement that allowed for the termination of employees based on performance management decisions were unfair. The Commission found that these provisions did not provide sufficient procedural fairness to employees and did not allow for adequate opportunity for employees to address performance concerns.

The Commission approved the enterprise agreement with modifications to the termination provisions to ensure that they provided adequate procedural fairness to employees. The Commission also ordered that the parties negotiate in good faith to reach an agreement on the modified termination provisions. The Fair Work Commission's decision provides guidance on the requirements for procedural fairness in termination provisions in enterprise agreements and the importance of providing adequate opportunity for employees to address performance concerns.

Qube Logistics (SB) Pty Ltd T/A Qube Logistics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established