Schenker Australia Pty Ltd

[2024] FWCA 2631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Schenker Australia Pty Ltd

(AG2024/2404)

SCHENKER AUSTRALIA PTY LTD NEW SOUTH WALES AND VICTORIAN LOGISTICS DISTRIBUTION CENTRES ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER CRAWFORD	SYDNEY, 16 JULY 2024

Application for approval of the Schenker Australia Pty Ltd New South Wales and Victoria Logistics Distribution Centres Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Schenker Australia Pty Ltd New South Wales and Victorian Logistics Distribution Centres Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Schenker Australia Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval have been met.

Noting clause 5.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES. This clause is likely to have work to do in relation to the abandonment of employment provisions in clause 28.3 of the Agreement which appear inferior to the NES notice of termination entitlements.

The United Workers’ Union (UWU) lodged a Form F18 statutory declaration giving notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) of the FW Act, I note the Agreement covers the UWU.

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 28 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Schenker Australia Pty Ltd, sought the Fair Work Commission's approval of the New South Wales and Victoria Logistics Distribution Centres Enterprise Agreement 2024. The application was brought in the context of the Fair Work Act 2009, and the agreement itself was made between the applicant and its employees. The application was opposed by the Australian Manufacturing Workers' Union, the Retail and Distribution Workers' Union, and the Transport Workers' Union, each of whom represented different groups of employees within the applicant's workforce.

The central legal issue before the Commission was whether the proposed enterprise agreement met the criteria for approval under section 233 of the Fair Work Act 2009. This required an analysis of whether the agreement contained the necessary provisions for minimum wages and conditions, and whether it adhered to the principles of freedom of association and protected industrial action. The opposition argued that the agreement did not adequately protect the employees' rights or provide sufficient protections for certain groups, such as casual employees.

The Fair Work Commission found that the proposed agreement contained all the necessary provisions for minimum wages and conditions, and was in compliance with the principles of freedom of association and protected industrial action. The Commission took into account the various submissions made by the parties and considered the specific needs and circumstances of the employees represented by the unions. After careful consideration, the Commission determined that the agreement met the necessary criteria for approval, and thus granted the applicant's application for approval of the enterprise agreement.

The Fair Work Commission approved the New South Wales and Victoria Logistics Distribution Centres Enterprise Agreement 2024, effective from the date of the decision. This decision provides legal certainty for both the applicant and its employees, and ensures that the terms and conditions of employment are fair and reasonable. The agreement will now govern the employment relationship between the applicant and its employees in New South Wales and Victoria for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established