Scotts Transport Industries Pty Ltd

[2016] FWCA 3635

[2016] FWCA 3635

FAIR WORK COMMISSION

DECISION

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

Scotts Transport Industries Pty Ltd
(AG2016/1027)

SCOTTS TRANSPORT INDUSTRIES NEW SOUTH WALES ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 8 JUNE 2016

Application for approval of the Scotts Transport Industries New South Wales Enterprise Agreement 2016

[1] An application has been made by Scotts Transport Industries Pty Ltd (the applicant/Scotts Transport) for the approval of an enterprise agreement known as the Scotts Transport Industries New South Wales Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act) and is a single enterprise agreement.

[2] The Agreement covers employees who are engaged in delivery tasks associated with the applicant’s contracts associated with Big W Hoxton Park and the applicant’s Milperra depot. Pursuant to s.186(3) of the Act, I am satisfied that the group of employees was fairly chosen based on the operational and geographical distinctiveness of the proposed coverage.

[3] The Transport Workers’ Union of Australia, NSW Branch (TWU) being a bargaining representative has filed a statutory declaration (F18) in support of the approval of the Agreement.

Notice of Employee Representational Rights (NERR)

[4] Section 174 of the FW Act provides a statutory requirement for the NERR to be in the prescribed format, and the correct content as per Regulation 2.05 of the Fair Work Regulations 2009 (the FW Regulations).

[5] The prescribed content of the NERR in the FW Regulations refer to the ‘Fair Work Commission’ (the Commission), however; the submitted NERR refers to ‘Fair Work Australia’ (FWA). I note that the contact details for the Commission are correct, and the reference to FWA is the only inconsistency between the submitted NERR and the prescribed form and content of the NERR under the FW Regulations.

[6] The applicant advised that the incorrect reference to FWA was due to the NERR not having been updated to take into account the amendments of the FW Act. By way of background, this Commission as established by the FW Act was originally named “Fair Work Australia”. The name of the Commission was changed to the “Fair Work Commission” as a result of the Fair Work Amendment Act 2012.

[7] The applicant seeks to rely on s.575(1) of the FW Act where it states:

“The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission”.

[8] The applicant also seeks to rely on s.25B of the Acts Interpretation Act 1901 (Interpretation Act) where it states:

(1) Where an Act alters the name of a body (whether or not the body is incorporated) or alters the name of an office, then:

(a)  the body or office continues in existence under the new name so that its identity is not affected; and

. . .

(b)  in any Act, in any instrument under an Act, in any award or other industrial determination or order or any industrial agreement, in any other order (whether executive, judicial or otherwise), in any contract, in any pleading in, or process issued in connection with, any legal or other proceedings or in any other instrument, a reference to the body or the office under the former name shall, except in relation to matters that occurred before the alteration took place, be construed as a reference to the body or the office under the new name.

[9] The application of the Acts Interpretation Act to the FW Act is specifically dealt with in s.40A of the FW Act, which provides:

Application of the Acts Interpretation Act 1901

(1)  The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.

(2)  Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.

[10] The issue of whether a NERR which refers to the FWA rather than the Commission satisfies the requirements under s.174 of the FW Act was examined in Serco Australia Pty Ltd v United Voice and the Union of Christmas Island Workers 1 (Serco). The Full Bench in Serco determined that s.25B(1)(b) of the Acts Interpretation Act as it was at 25 June 2009 operates in respect of a NERR, and as such a NERR which refers to the FWA is compliant with s.174 of the FW Act.2

[11] Adopting the approach in Serco, and taking into account that the incorrect reference to the Commission is the only inconsistency between the submitted NERR and the prescribed NERR as per Regulation 2.05 of the FW Regulations, I am satisfied that the NERR meets the requirements under s.174. There is nothing to suggest that the employees under the Agreement have been misled in any way.

Nominal expiry date

[12] The nominal expiry date of the Agreement specified at 2.1 of the Employer’s Statutory Declaration (F17) is 2 years from the date of approval of the Agreement. The nominal expiry date at cl.5.1 of the Agreement reads:

“………and shall continue for a nominal term of three (2) years (“Nominal Term”)”.

(My underline)

[13] The Commission sought clarification from the applicant as to whether the nominal expiry date was 2 or 3 years from the date of approval.

[14] On 6 June 2016, the applicant confirmed that the nominal expiry date is 2 years from the date of approval and attached a copy of the Agreement with a correction to the nominal expiry date clause. The TWU was copied into the applicant’s correspondence to the Commission. The Commission has not received any objection from the TWU with respect to the nominal expiry date.

[15] Pursuant to s.586 of the FW Act, the application is amended to reflect the correct nominal expiry date of the Agreement (2 years from the date of approval), as was intended by the parties.

Better off overall test (BOOT)

[16] The Road Transport and Distribution Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act. The Agreement also operates in conjunction with the Award. The Agreement, in comparison to the Award provides significantly higher rates of pay.

Approval

[17] Taking into account the higher rate of pay under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[18] 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.

[19] The TWU has given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[20] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 15 June 2016. The nominal expiry date of the Agreement is 2 years from the date of approval.

DEPUTY PRESIDENT

 1   [2015] FWCFB 5618

 2   See paragraph 19 of Serco

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