Rantoo Pty Ltd T/A T&C Couriers

[2016] FWCA 3955

[2016] FWCA 3955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Rantoo Pty Ltd T/A T&C Couriers
(AG2016/3295)

T & C COURIERS ENTERPRISE AGREEMENT 2015

Road transport industry
DEPUTY PRESIDENT BINET	PERTH, 8 JULY 2016

Application for variation of the T & C Couriers Enterprise Agreement 2015.

[1] Rantoo Pty Ltd T/A T&C Couriers (T&C Couriers) is a party to the T & C Couriers Enterprise Agreement 2015 (Agreement). There is no employee organisation covered by the Agreement.

[2] The Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 January 2018.

[3] T&C Couriers have made an application to the Fair Work Commission (FWC) pursuant to section 210 of the Fair Work Act 2009 (FW Act) for approval of a variation to the Agreement (Application).

[4] The variation to the Agreement seeks to allow employees to cash out a portion of their personal or carer’s leave.

[5] Sections 210 and 211 of the FW Act sets out the conditions which must be met for an agreement to be varied by the FWC. Section 211(1) provides as follows:

“211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).”

[6] The Reference Instrument is the Road Transport and Distribution Award 2010.

[7] In accordance with subsection 210(2)(c) of the FW Act, the Application was supported by a statutory declaration by Mr Robert Wilson, Managing Director of T&C Couriers, confirming the requirements set out in the FW Act for the approval of the variation have been met (Wilson Statutory Declaration).

[8] A signed copy of the proposed variations was filed by T&C Couriers as required by section 210(2)(a) of the FW Act and is attached to this decision at Annexure A.

[9] A consolidated version of the Agreement, as varied, was filed by T&C Couriers as required by subsection 210(2)(b) of the FW Act and is provided with this decision.

[10] According to the Wilson Statutory Declaration, the variation was made on 19 May 2016. The Application was lodged on 25 May 2016 and therefore was filed within time.

[11] I am satisfied that each of the requirements of section 210 the FW Act as are relevant to the Application for approval have been met.

[12] On 3 June 2016 T&C Couriers were directed (Directions) to provide evidence as to whether employees covered by the Agreement are better off overall under the Award or the Agreement as proposed to be varied (Boot Evidence) and submissions in relation to whether there are any serious public interest grounds for not approving the variation (Submissions).

[13] In the same Directions, T&C Couriers were instructed to provide the Boot Evidence, Submissions, a copy of the Application, and a copy of the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact my Chambers by close of business on Friday 24 June 2016.

[14] On 17 June 2016, Mr Uphill confirmed in a statutory declaration that the Boot Evidence, Submissions, a copy of the Application and a copy of the Directions had been provided to all employees currently covered by the Agreement.

[15] No applications to be heard were received from any employees of T&C Couriers on or before close of business on Friday 24 June 2016.

[16] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that had the Application been made under section 185 of the FW Act for the approval of the Agreement as proposed to be varied, I would have been required to approve the Agreement under section 186 of the FW Act.

[17] The expiry date of the Agreement is not proposed to be varied by the variations.

[18] I am satisfied that there are no serious public interest grounds for not approving the variation.

[19] Having been satisfied that sections 210 and 211 of the FW Act have been met, the variation of the Agreement is therefore approved and will operate from the date of this decision.

DEPUTY PRESIDENT

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ANNEXURE A