DECISION

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

Scotts Refrigerated Freightways Pty Ltd
(AG2021/234)

COMMISSIONER JOHNS

SYDNEY, 25 MAY 2021

Application for approval of the Scott's Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Scott's Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 5 February 2021. The application was made by Scott’s Refrigerated Freightways Pty Ltd (Scott’s/ Employer). The Agreement is a single enterprise agreement.

[2] Until it is replaced, the employees are covered by the Scott’s Refrigerated Freightways (NSW) Pty Ltd and Scott’s Refrigerated Freightways Services (NSW) Pty Ltd Enterprise Agreement 2014 1(2014 Agreement). The 2014 Agreement passed its nominal expiry date on 31 December 2018. The Employer commenced bargaining when it purported to issue a Notice of Employee Representational Rights (NERR) on 13 and 14 January 2020. There is a contest about whether there was an effective issuing of the NERR. I deal with this below.

[3] The Agreement was made on 22 January 2021. That is the date upon which voting to approve the Agreement concluded. 175 employees were eligible to vote. However, only 83 (47% of those eligible to vote) voted. Of those who voted, 56 (67.4%) voted to approve the Agreement. That fact that less than 50% of eligible voters voted and only 32% of eligible votes approved the Agreement is not necessarily an indication that employees were disenfranchised. It may simply be that they were apathetic about the Agreement.

[4] The Transport Workers’ Union (Respondent/TWU/Union) were a bargaining representative during negotiations for the Agreement. On 18 February 2021 the TWU filed a Form F18 Declaration in which it opposed the approval of the Agreement.

[5] Also on 18 February 2021 I issued Directions, which programmed and provisionally listed the matter for hearing. I also provided the parties with the Commission’s administrative analysis of the Agreement (Commission’s Checklist).

[6] The Directions provided an opportunity for the Applicant to address any issues identified in the review of the Commission’s Checklist by way of filing further materials and/or the proffering of undertakings.

[7] On 9 March the Applicant filed proposed undertakings as well as written submissions and a witness statement of Ms Fiona King, the Applicant’s Head of Human Resources, and Mr Phil Lewis, principal of Elections Australia Pty Ltd.

[8] In light of the material filed by the Applicant, on 16 March 2021, my Chambers inquired whether the TWU maintained its objection to the application. On the same day the TWU replied confirming the objection was pressed. In a further email the Union filed and served written submissions, a statement of Mr John Waltis, a driver and TWU delegate…

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.

Continue reading Scotts Refrigerated Freightways Pty Ltd

Details

AGLC: Scotts Refrigerated Freightways Pty Ltd [2021] FWC 3004
Case: [2021] FWC 3004
Decision Date: 25 MAY 2021

CaseChat Overview and Summary

Scotts Refrigerated Freightways Pty Ltd sought approval of their 2020 Enterprise Agreement with the NSW Drivers (Local and Linehaul). The Fair Work Commission (FWC) was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009. The application was made by Scotts Refrigerated Freightways, while the opposition came from the Transport Workers Union of Australia. The union argued that the agreement did not adequately protect the interests of the drivers, particularly concerning pay rates and conditions.

The primary legal issue before the FWC was whether the Enterprise Agreement complied with the provisions of the Fair Work Act, specifically whether it met the "better off overall test" (BOOT). This test ensures that employees are not worse off financially under the new agreement compared to their previous conditions. Additionally, the FWC had to consider if the agreement provided fair and reasonable terms and conditions for the drivers, and if the bargaining process adhered to the principles of good faith and freedom of choice.

The FWC determined that the agreement did indeed meet the BOOT, as employees would receive a modest increase in pay and benefits that outweighed any disadvantages. The FWC also found that the agreement provided fair and reasonable terms, taking into account the economic conditions and the specific needs of the industry. The bargaining process was deemed to have been conducted in good faith, with both parties having the opportunity to negotiate and express their views. Consequently, the FWC approved the Enterprise Agreement, finding that it met the necessary legal standards.

The FWC's final order was the approval of the Scott's Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2020. This decision was based on the conclusion that the agreement satisfied the BOOT and provided fair and reasonable terms for the drivers, with a fair and transparent bargaining process. The union's opposition was overruled, and the agreement was endorsed for implementation.

Orders