Schenker Australia Pty Ltd T/A DB Schenker

[2022] FWCA 4315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Schenker Australia Pty Ltd T/A DB Schenker

(AG2022/4882)

Schenker Australia Pty Ltd New South Wales Logistics Distribution Centres Enterprise Agreement 2021

Road transport industry
DEPUTY PRESIDENT EASTON	SYDNEY, 8 DECEMBER 2022

Application for approval of the Schenker Australia Pty Ltd New South Wales Logistics Distribution Centres Enterprise Agreement 2021.

Schenker Australia Pty Ltd T/A DB Schenker (the Employer) has made an application for the approval of the Schenker Australia Pty Ltd New South Wales Logistics Distribution Centres Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

The United Workers’ Union (UWU) was a bargaining representative for the Agreement and 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 UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 December 2022. The nominal expiry date of the Agreement is 28 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Schenker Australia Pty Ltd, trading as DB Schenker, applied for approval of the New South Wales Logistics Distribution Centres Enterprise Agreement 2021. The dispute was heard in the Fair Work Commission (FWC). The application raised questions about whether the agreement complied with the Fair Work Act 2009, specifically in terms of its provisions, fairness, and coverage. The central issue was whether the agreement met the requirements for an enterprise agreement, including the necessity of being in writing, providing for a period of at least one year, and covering employees within the relevant enterprise. Furthermore, the court had to assess if the agreement was fairly negotiated and if it adhered to the statutory requirements regarding its provisions and fairness.

The Fair Work Commission examined whether the agreement was properly negotiated and if its contents were fair and reasonable. The Commission noted that the agreement was in writing, covered a period of at least one year, and specified the employees within the enterprise. Additionally, it was crucial to determine if the agreement contained only permissible provisions and if it was not detrimental to employees' safety, health, or welfare. The Commission considered submissions from both parties and relevant precedents to evaluate the fairness and compliance of the agreement with the statutory requirements.

In its decision, the Fair Work Commission found that the New South Wales Logistics Distribution Centres Enterprise Agreement 2021 was in accordance with the Fair Work Act 2009. The Commission concluded that the agreement was fairly negotiated, contained only permissible provisions, and was not detrimental to employees. The Commission approved the agreement, highlighting that it met all statutory requirements and was fair and reasonable. Consequently, the application for approval was successful.

The final orders of the Fair Work Commission approved the New South Wales Logistics Distribution Centres Enterprise Agreement 2021 as a registered agreement under the Fair Work Act 2009. The agreement was to be registered and would come into effect from the date of the Commission's decision. This approval validated the terms and conditions set out in the agreement, which would govern the employment of the specified employees within the enterprise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established