Schenker Australia Pty Limited

[2016] FWCA 2950

[2016] FWCA 2950

FAIR WORK COMMISSION

DECISION

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

Schenker Australia Pty Limited
(AG2016/719)

SCHENKER AUSTRALIA PTY LIMITED NEW SOUTH WALES LOGISTICS' DISTRIBUTION CENTRE'S ENTERPRISE AGREEMENT 2015 - 2018.

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 20 MAY 2016

Application for approval of the Schenker Australia Pty Limited NSW Logistics Distribution Centres Enterprise Agreement 2015 -2018.

[1] An application has been made by Schenker Australia Pty Limited (the applicant/ Schenker) for the approval of an enterprise agreement known as the Schenker Australia Pty Limited NSW Logistics Distribution Centres Enterprise Agreement 2015 -2018 (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 Agreement covers non-salaried and non-managerial employees who perform logistics warehouse work in New South Wales. 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.

[3] The National Union of Workers (NUW) was an employee organisation involved in the agreement making process. The NUW has filed a statutory declaration (F18) stating that it supported the approval of the Agreement.

[4] The Transport Workers’ Union of Australia (TWU) also filed a statutory declaration (F18) stating that it wished to be covered by the Agreement. Schenker opposed the Agreement covering the TWU, stating that the TWU was not involved in any of the negotiations for the Agreement and did not have any members who were to be covered by the Agreement.

[5] The TWU and Schenker agreed to provide confidential lists of their respective employees and members to the Fair Work Commission (Commission) so that a determination could be made as to whether the TWU had members that would be covered by the Agreement. Schenker also proposed providing an undertaking so as to clarify the scope of the Agreement.

[6] Upon reviewing each confidential list I was satisfied that there were no common names between the lists and I informed each party as such. Subsequently, the TWU stated that it did not wish to be heard further and withdrew its F18 on the basis of the undertaking proposed by Schenker.

Consultation Term

[7] 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 an employee’s regular roster or ordinary hours of work.

[8] 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.

Undertaking

[9] The applicant has provided an undertaking which gives greater clarity to the scope of the Agreement and the employees to be covered by it. That undertaking is annexed at Annexure B.

Better off overall test

[10] 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 instrument for the purposes of the BOOT, including significantly higher base rates of pay.

Conclusion

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

[12] The NUW 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.

[13] 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.

[14] 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 30 September 2018.

DEPUTY PRESIDENT

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