Scott's Refrigerated Freightways Pty Limited

[2018] FWC 6056

[2018] FWC 6056

FAIR WORK COMMISSION

DECISION

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

Scott's Refrigerated Freightways Pty Limited
(AG2018/177)

COMMISSIONER CAMBRIDGE SYDNEY, 27 SEPTEMBER 2018

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

[1] An application has been made for approval of an enterprise agreement known as the Scott’s Refrigerated Freightways Pty Limited Queensland Drivers (Linehaul and Local) 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 Brisbane on 22 January 2018. On 1 May 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of Fiona King made on behalf of the Employer and dated 22 January 2018 (the Declaration). The Declaration stated that the Agreement was made on 12 January 2018. Therefore the application was 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, and Ms M Cerrato together with Mr A Carter appeared for the Transport Workers’ Union of Australia (TWU). Mr B Huddle a bargaining representative for the Agreement, also appeared via telephone link at the Hearing held on 1 June. 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 and Ms Cerrato 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 27 August 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] The Commission also received correspondence from the TWU dated 28 August 2018, which inter alia, referred to the issue of a pre-approval process matter involving the operation of subsections 180 (3) and (4) of the Act. In this regard, the TWU drew attention to the Full Bench Decision issued on 21 June 2018 in the matter of CFMMEU and Ors V CBI Construction. 1 (CBI).

[6] Consequently, the Commission indicated that the application may be listed for further Hearing. However, upon further consideration of the application for approval and having regard for; (a) the clarifications provided during the Hearing, (b) the further material in support of the application including the Undertakings, (c) the correspondence from the TWU of 28 August, and (d) the Full Bench Decision in CBI, an alternative to any further Hearing has emerged as a more practical outcome.

[7] 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.

[8] 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.

[9] Further, in this instance, having regard for the Full Bench authority established in the CBI Decision, a pre-approval process error has not permitted the application for approval to be granted. However, in any event, 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.

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

[11] 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. 180, 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 applicant/employer.

Ms M Cerrato and Mr A Carter appeared for the Transport Workers’ Union of Australia.

Mr B Huddle appeared as an Employee Bargaining Representative.

Hearing details:

2018.

Sydney and Brisbane (video hearing):

June, 1.

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 1   Construction, Forestry, Maritime, Mining, and Energy Union and Ors v CBI Constructions Pty Ltd [2018] FWCFB 2732.