Scott Corporation Limited

[2013] FWCA 1292

[2013] FWCA 1292

FAIR WORK COMMISSION

DECISION

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

Scott Corporation Limited
(AG2013/4255)

BULKTRANS - SOUTHERN BULK HAULAGE (SBH) DRIVERS ENTERPRISE AGREEMENT 01/01/2013 TO 31/12/2016

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 28 FEBRUARY 2013

Application for approval of the Bulktrans - Southern Bulk Haulage (SBH) Drivers Enterprise Agreement 01/01/2013 to 31/12/2016.

[1] An application has been made for approval of an enterprise agreement known as the Bulktrans - Southern Bulk Haulage (SBH) Drivers Enterprise Agreement 01/01/2013 to 31/12/2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Scott Corporation Limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 3 January 2013. The application included a Statutory Declaration of Robert Arthur Coulthard made on behalf of the Employer and dated 24 December 2012, (the Declaration). The Declaration stated that the Agreement was made on 24 December 2012. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 13 February 2013 at which time Mr T Hearne appeared for the Employer and Messrs C O’Callaghan, B Gibson and G Avnell appeared on behalf of the Transport Workers’ Union of Australia (the TWU). During the proceeding held on 13 February, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Mr Hearne and Mr O’Callaghan provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 25 February 2013, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 28 and a consultation term at clause 29.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[9] The TWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the TWU.

[10] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 7 March 2013. In accordance with clause 1.2 of the Agreement the nominal expiry date of the Agreement is 31 December 2016.

COMMISSIONER

Undertakings:

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