Scott's Transport Industries Pty Ltd - [2014] FWC 769

[2014] FWC 769

FAIR WORK COMMISSION

DECISION

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

Scott's Transport Industries Pty Ltd
(AG2013/10055)

COMMISSIONER CARGILL

SYDNEY, 4 FEBRUARY 2014

Application for approval of the Scott's Transport Goulburn Valley Enterprise Agreement 2013.

[1] This decision concerns an application made under section 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement. The application has been made by Scott’s Transport Industries Pty Ltd (Scotts or the company). The title of the agreement is the Scott’s Transport Goulburn Valley Enterprise Agreement 2013 (the Agreement)

[2] The application is opposed by the Transport Workers’ Union of Australia (TWU) which was a bargaining representative for the Agreement.

[3] The matter was listed for a Directions hearing by telephone link on 13 December 2013. At that hearing the company was represented by Mr R Kuczmarski, Group Human Resources Manager for the Scott Group of Companies. The TWU was represented by Mr H Smith, Industrial Officer.

[4] A timetable was put in place for the filing and exchange of written material. The material from the company consists of its F16 and F17 and written submissions dated 3 January and 20 January 2014. The material from the TWU consists of its F18 in which it sets out in detail its grounds of objection to approval of the Agreement, a clarifying email dated 22 November 2013, additional material dated 20 December 2013 and written submissions dated 17 January 2014. I have had regard to all of the material provided by both the company and the TWU.

[5] There is an existing enterprise agreement in place, the Scott’s Transport Goulburn Valley Enterprise Agreement 2010 (the 2010 Agreement). This agreement was approved on 10 June 2010 and had a nominal expiry date of 9 June 2012.

[6] Before outlining the submissions of the parties I note that the F18 raised an issue about the company’s response to Q2.16 in its F17. In its submissions of 3 January 2014 the company notes that its response was an error and that the answer to the question should have been “no”. I accept that is the case. The error is an obvious one.

SUBMISSIONS OF THE TWU

[7] The main thrust of the TWU submissions is that the Agreement fails the Better Off Overall Test (the BOOT). No issue is raised in relation to the legislative requirements concerning pre approval steps including the vote of the employees.

[8] The union submits that the company’s reliance upon the Road Transport (Long Distance) Award 2010 (the Long Distance Award) as setting the comparison for conditions in the Agreement is wrong. It refers to clause 3.1 “Parties Bound” of the Agreement and notes that it appears that the work is overwhelmingly local work. As a consequence, the appropriate award for the purposes of the BOOT is the Road Transport and Distribution Award 2010 (the Distribution Award).

[9] The union refers to the definitions in clause 3 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 769
Decision Date: 4 FEBRUARY 2014

CaseChat Overview and Summary

The case involved Scott's Transport Industries Pty Ltd and its employees. The company sought approval for the Scott's Transport Goulburn Valley Enterprise Agreement 2013, which was a proposed collective agreement between the employer and its employees. The application was heard in the Fair Work Commission, which is responsible for overseeing and approving enterprise agreements in Australia.

The legal issues before the Commission included whether the agreement had been made in accordance with the relevant legislative provisions and whether it contained all the mandatory terms required by law. The Commission needed to determine whether the agreement had been fairly and properly negotiated and whether it complied with the requirements for disclosure and bargaining.

The Commission found that the agreement had been made in accordance with the Fair Work Act 2009 and contained all the mandatory terms required by law. The Commission noted that the agreement had been negotiated in good faith and that all relevant parties had been given an opportunity to participate in the bargaining process. The Commission also found that the agreement complied with the requirements for disclosure and bargaining and that the parties had acted in accordance with the relevant provisions of the Act.

As a result, the Commission approved the Scott's Transport Goulburn Valley Enterprise Agreement 2013. The agreement now provides a framework for the employment of the company's employees in the Goulburn Valley region, setting out their rights and obligations in relation to wages, hours of work, and other employment conditions.

Orders