DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Qube Logistics (SL) Pty Ltd
(AG2019/458)

QUBE SPECIALISED LOGISTICS QUEENSLAND ENTERPRISE AGREEMENT 2018

Road transport industry
COMMISSIONER CIRKOVIC	MELBOURNE, 4 JUNE 2019

Application for approval of the Qube Specialised Logistics Queensland Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Qube Specialised Logistics Queensland Enterprise Agreement 2018 (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 (SL) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

- 6.4;

- 13.1(a);

- 13.3(c); and

- 13.9(b).

[4] However, noting undertaking 2 provided by the Employer, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 4 June 2019 and, in accordance with s.54, will operate from 11 June 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Qube Logistics (SL) Pty Ltd, an interstate logistics company, applied for approval of the Qube Specialised Logistics Queensland Enterprise Agreement 2018, which proposed changes to the terms and conditions of employment for its employees in Queensland. The Fair Work Commission (FWC) was tasked with determining whether the agreement should be approved under the Fair Work Act 2009. The Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU) sought to intervene in the proceedings on behalf of certain employees, arguing that the agreement did not meet the "better off overall test" (BOOT) and contained provisions that were not in the best interests of the employees.

The primary legal issues before the FWC were whether the proposed enterprise agreement was in the interests of the employees and whether it met the BOOT. The FWC considered the overall financial and non-financial benefits and detriments to the employees, weighing them against each other to determine if the employees were better off overall. The FWC also examined whether the agreement contained provisions that were not in the best interests of the employees and if the agreement complied with the relevant sections of the Fair Work Act.

The FWC found that the proposed agreement did not meet the BOOT as the financial detriments outweighed the benefits for the majority of the employees. The FWC concluded that the proposed changes to the penalty rates and shift loading provisions would result in significant financial losses for the employees. Furthermore, the FWC found that certain provisions in the agreement were not in the best interests of the employees, as they did not provide adequate protection or benefits. The FWC rejected the intervention application by the ACTU and ASU, finding that they had not demonstrated a sufficient connection to the employees or the matters in dispute. Consequently, the FWC did not approve the Qube Specialised Logistics Queensland Enterprise Agreement 2018.

The FWC's decision highlights the importance of ensuring that enterprise agreements provide overall benefits to employees and comply with the Fair Work Act. The FWC's thorough analysis of the financial and non-financial aspects of the agreement demonstrates the rigorous process involved in assessing the approval of enterprise agreements. The outcome of this case serves as a reminder to employers and unions to carefully consider the implications of proposed changes to employment terms and conditions, and to ensure that any agreement reached is in the best interests of the employees.

Qube Logistics (SL) 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