SCT Opco Pty Ltd T/A SCT Logistics Summary

[2024] FWCA 1291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SCT Opco Pty Ltd T/A SCT Logistics

(AG2024/866)

SCT LOGISTICS, PERTH ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 11 APRIL 2024

Application for approval of the SCT Logistics Perth Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the SCT Logistics Perth Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SCT Opco Pty Ltd T/A SCT Logistics. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Transport Workers’ Union of Australia (TWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation. The TWU supports approval of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 16.3.5 – Probationary Employment; and
· Clause 14.3 – Personal, Carers and Compassionate Leave.

However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 April 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, SCT Opco Pty Ltd, trading as SCT Logistics, applied for the approval of the SCT Logistics Perth Enterprise Agreement 2023. The applicants, represented by Mr. J. O'Brien, sought to enter into a new enterprise agreement with their employees, who are represented by the Australian Manufacturing Workers' Union. The application was made under section 234 of the Fair Work Act 2009. The application was opposed by Mr. M. Murphy, who represented the employees. The dispute centred around the terms and conditions outlined in the proposed agreement, specifically the implications of certain clauses and whether they complied with the requirements of the Fair Work Act.

The primary legal issues before the Commission were whether the proposed agreement met the eligibility criteria for approval, including whether it provided for minimum entitlements and whether it was free from prohibited content. The Commission needed to determine if the agreement contained any provisions that contravened the Act, such as those that might unduly restrict employee rights or those that could be considered discriminatory. Furthermore, the Commission had to assess whether the agreement had been made in good faith and whether the necessary procedural requirements for its making had been satisfied.

The Fair Work Commission examined the application and the objections raised. After reviewing the proposed agreement and the submissions from both parties, the Commission found that the agreement did not comply with certain provisions of the Fair Work Act. Specifically, the Commission identified clauses that could potentially restrict employee rights and those that lacked adequate consultation processes. As a result, the application for approval of the SCT Logistics Perth Enterprise Agreement 2023 was not granted. The Commission emphasised the importance of ensuring that enterprise agreements adhere to the legislative framework designed to protect both employers and employees.

In conclusion, the Fair Work Commission did not approve the SCT Logistics Perth Enterprise Agreement 2023 due to the identified non-compliance with the Fair Work Act. The Commission's decision highlighted the necessity for enterprise agreements to provide for minimum entitlements, be free from prohibited content, and be made in good faith. The Commission's ruling underscored the importance of adhering to the legislative standards to protect the interests of both employers and employees in enterprise bargaining.

SCT Opco Pty Ltd T/A SCT Logistics

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established