Scott's Refrigerated Freightways Pty Limited

[2018] FWC 6053

[2018] FWC 6053

FAIR WORK COMMISSION

DECISION

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

Scott's Refrigerated Freightways Pty Limited
(AG2018/75)

COMMISSIONER CAMBRIDGE SYDNEY, 27 SEPTEMBER 2018

Application for approval of the Scott's Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Scott’s Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2017 (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’s Refrigerated Freightways Pty Limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 8 January 2018. On 1 May 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of Drew Richardson made on behalf of the Employer and dated 4 January 2018 (the Declaration). The Declaration stated that the Agreement was made on 18 December 2017. Therefore the application was not made within the 14 day time limit established by subsection 185 (4) of the Act.

[3] The application for approval was listed for Hearing on 1 June 2018, at which time Ms J O’Brien solicitorfrom Sladen Legal was granted permission to appear for the Employer. During the proceeding held on 1 June, the Commission identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Ms O’Brien 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 6 September 2018, from Sladen Legal 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. The further material in support of the application sought to address most, but not all, of the concerns that were identified during the proceedings held on 1 June. Unfortunately, the further material in support of the application failed to satisfactorily address a number of important concerns that were raised by the Commission during the Hearing held on 1 June 2018.

[6] The Commission has carefully considered the further material in support of the application and the proposed Undertakings. Certain aspects of the concerns raised by the Commission in the Hearing held on 1 June have been potentially addressed by the proposed Undertakings. However, other concerns have not been satisfactorily addressed by either the further material provided in support of the application or the proposed Undertakings. These concerns primarily relate to the requirement for the Commission to be satisfied that the Agreement would pass the Better Off Overall Test (BOOT) as required by subsection 186 (d) and s. 193 of the Act.

[7] Further, upon considered examination, the proposed Undertakings or any subsequently developed permutation of these or other Undertakings which could, on any objective contemplation, provide rectification of the concerns that have been identified, would result in substantial changes to the Agreement.

[8] Consequently, any objectively determined prognosis for the application would create a circumstance that offended subsection 190 (3) (b) of the Act.

[9] In addition, no satisfactory explanation for the late lodgement of the application has been provided so as to enable the Commission to exercise the discretion provided by subsection 185 (3) (b) of the Act.

[10] Therefore, in such circumstances, and in the interests of efficiency and avoidance of additional costs to the applicant, as the application is not capable of satisfying the relevant requirements of ss. 185, 186, 187, 190 and 193 of the Act, the application must be dismissed.

COMMISSIONER

Appearances:

Ms J O’Brien solicitor from Sladen Legal appeared for the Employer.

Hearing details:

2018.

Sydney:

June, 1.

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