DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Schenker Australia Pty Ltd T/A DB Schenker
(AG2018/1654)

SCHENKER AUSTRALIA PTY LTD NEW SOUTH WALES FREIGHT FORWARDING WAREHOUSE ENTERPRISE AGREEMENT 2018-2021

Road transport industry
COMMISSIONER GREGORY	MELBOURNE, 10 AUGUST 2018

Application for approval of the Schenker Australia Pty Ltd New South Wales Freight Forwarding Warehouse Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Schenker Australia Pty Ltd New South Wales Freight Forwarding Warehouse Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Schenker Australia Pty Ltd T/A DB Schenker. 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] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2018. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Schenker Australia Pty Ltd, trading as DB Schenker, for approval of the New South Wales Freight Forwarding Warehouse Enterprise Agreement 2018-2021. The application was brought under section 234 of the Fair Work Act 2009, which mandates that enterprise agreements be approved if they meet certain criteria, including that they provide for fair and reasonable terms and conditions, and do not include terms that are contrary to public policy. The application was contested by the Shop, Distributive and Allied Employees’ Association (SDA), which raised concerns about several aspects of the proposed agreement.

The legal issues the court was required to decide included whether the agreement provided for fair and reasonable terms and conditions, and whether it included any terms that were contrary to public policy. The SDA argued that the agreement did not provide for fair and reasonable terms and conditions, particularly in relation to the provisions concerning shift patterns, overtime, and leave entitlements. The SDA also argued that certain terms in the agreement were contrary to public policy, including a provision that allowed the employer to unilaterally vary the agreement.

The Fair Work Commission found that the proposed agreement did provide for fair and reasonable terms and conditions, and did not include any terms that were contrary to public policy. The Commission noted that the agreement provided for reasonable shift patterns and overtime entitlements, and that the leave provisions were not unreasonable. The Commission also found that the provision allowing for unilateral variation of the agreement was not contrary to public policy, as it was necessary to allow for flexibility in the operation of the business. The Commission approved the proposed agreement, subject to certain minor amendments to address the SDA’s concerns.

The Fair Work Commission approved the Schenker Australia Pty Ltd New South Wales Freight Forwarding Warehouse Enterprise Agreement 2018-2021, subject to certain minor amendments. The Commission found that the agreement provided for fair and reasonable terms and conditions, and did not include any terms that were contrary to public policy. The Commission noted that the agreement provided for reasonable shift patterns and overtime entitlements, and that the leave provisions were not unreasonable. The Commission also found that the provision allowing for unilateral variation of the agreement was not contrary to public policy, as it was necessary to allow for flexibility in the operation of the business. The amendments to the agreement related to the SDA’s concerns about shift patterns, overtime, and leave entitlements.

Schenker Australia Pty Ltd T/A DB Schenker

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established