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

[2016] FWCA 2587

[2016] FWCA 2587

The attached document wholly replaces the document previously on 22 April 2016 issued with the code [2016] FWC 2500 due to an incorrect referencing issue.

1. Change of Print Number and MNC code.

David Cambridge

Associate to Deputy President Bull

Dated 22 April 2016

[2016] FWCA 2587

FAIR WORK COMMISSION

DECISION

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

Qube Logistics (SB) Pty Ltd T/A Qube Logistics
(AG2016/538)

QUBE LOGISTICS ACACIA RIDGE TRANSPORT AND CONTAINER TERMINAL ENTERPRISE AGREEMENT 2015

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 APRIL 2016

Application for approval of the Qube Logistics Acacia Ridge Transport and Container Terminal Enterprise Agreement 2015.

[1] An application has been made by Qube Logistics (SB) Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Qube Logistics Acacia Ridge Transport and Container Terminal Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Transport Workers’ Union of Australia (TWU) was an employee organisation involved in the agreement making process. The union has filed a statutory declaration (F18) stating that subject to undertakings provided by the applicant, they support the approval of the Agreement and wish to be covered by the Agreement.

[3] The Agreement covers non-salaried employees at Acacia Ridge and any additional intermodal terminal operations conducted by Qube within Queensland. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen based on the operational distinction of the employees having been chosen.

Consultation Term

[4] The consultation term at clause 23 of the Agreement does not meet the requirements of s.205(1A) of the Act, the clause does not specifically address consultation in relation to a change to the employees regular roster or ordinary hours of work.

[5] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure A of this decision.

Flexibility Term

[6] The flexibility clause contained at clause 23 of the Agreement does not address the requirements of s.204 of the Act. In particular, it does not set out the terms of the Agreement which may be varied by an individual flexibility arrangement.

[7] The applicant wrote to the Fair Work Commission on 14 April 2016 stating that it had omitted the flexibility term in error and wished to rely upon the flexibility term outlined under the relevant Modern Award.

[8] The model flexibility term at Schedule 2.2 of the Act will be taken to be a term of the Agreement. A copy of the model flexibility term is attached at Annexure B of this decision.

Redundancy Pay

[9] Clause 20.5 of the Agreement allowed the applicant to withhold redundancy entitlements in circumstances where ‘alternative employment’ was found by an employee contrary to s.120 of the Act.

Undertaking

[10] The applicant has provided an undertaking which states that the employer will comply with its obligations under s.120 of the Act. The applicant also provided an undertaking that the shift loading rates for all employees would reflect the shift loadings within the Road Transport and Distribution Award 2010. These undertakings are annexed at Annexure C.

Better off overall test

[11] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are more beneficial than the Road Transport and Distribution Award 2010, being the relevant reference instruments for the purposes of the BOOT, including:

1. Higher base rates of pay; and

2. Higher allowances;

Conclusion

[12] Taking into account the higher rates of pay and allowances under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[13] The TWU has stated in its F18 that it wishes to be covered by the Agreement, in accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 31 March 2019.

DEPUTY PRESIDENT

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