Silk Contract Logistics Pty Ltd

[2019] FWCA 2590

[2019] FWCA 2590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Silk Contract Logistics Pty Ltd
(AG2019/812)

SILK CONTRACT LOGISTICS PTY LTD NSW ENTERPRISE AGREEMENT 2018

Storage services
COMMISSIONER JOHNS	SYDNEY, 16 APRIL 2019

Application for approval of the Silk Contract Logistics Pty Ltd NSW Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Silk Contract Logistics Pty Ltd NSW Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FWAct). It has been made by Silk Contract Logistics Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] In its application for approval of the Agreement on 21 March 2019, the Employer requested that “Annexure 3, be kept as confidential between the parties and not published as part of the ratified Agreement”. On 11 April 2019, my Chambers wrote to the Employer inviting further submissions about the nature of the confidentiality attaching to the wage rates. My Chambers invited the Employer to consider the decision of The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd. 1

[5] On 15 April 2019 Megan Barrett of the Employer replied. Ms Barrett stated that,

“I would like to make this further submission in relation to Silk’s request that the wages tables, included in Annexure 3 of the Silk Contract Logistics Pty Ltd NSW Enterprise Agreement 2016, be marked confidential between the parties and not published as part of the ratified Agreement.

Silk Contract Logistics operates in the third party contract logistics industry, which is a highly competitive industry, where clients change providers based on cost. One of the most significant cost in third party contract logistic offering, is labour costs.

To minimise the opportunity for our competitors and clients to develop an understanding of our costs, we consider the wages table to be commercially sensitive and ask that the wages table in this Agreement be kept confidential.

During the negotiation of the above Enterprise Agreement, the opportunity to move the wage table to an Annexure and be kept confidential was raised and discussed. All parties agreed to this approach, inclusive of employees and the NUW.

…

I note that it is not uncommon practice for wage tables to be kept confidential within the third party contract logistics industry, with many of our competitors having wage tables suppressed. I direct attention to the following ratified Enterprise Agreements as a small sample of those Enterprise Agreements:

● CEVA Logistics and Transport Workers Union National Enterprise Agreement 2017 – 2020;

● Toll – TWU Enterprise Agreement 2017 – 2020;

● Schenker Australia Pty Ltd New South Wales Freight Forwarding Warehouse Enterprise Agreement 2018 – 2021.

All current and new employees, as well as the NUW have been provided with a complete copy of the Enterprise Agreement, including Annexure 3 of the wage table. Further copies of the full Enterprise Agreement complete with Annexure 3 will be provided to any employee upon request. The Company does not intend to hide the wage tables from its employees or the NUW. Only to protect its competitive position by not having the table available publicly, and therefore visible to Silk’s clients and competitors”.

[6] For the reasons set out below I reject that submission.

[7] The wage rates contained in an enterprise agreement may be of interest to a range of persons other than the employees to whom the agreement applies and the unions covered by the agreement who might seek to enforce the entitlements of their members. For example, academics, students, economists and statisticians have an interest in wage trends and outcomes. They would be deprived of important research material if wage rates were routinely not published by the Commission. In the Oji Foodservice decision the Full Bench also noted that (in that case) “the redaction of wage rates also makes it impossible for any interested party to form their own view of with the … agreement met the ‘better off overall test’ in ss. 186(2) and 193.” 2

[8] Non-publication would be inconsistent with the Commission’s obligation to publish decisions (s.601 of FW Act) and the additional obligation to perform its functions and exercise its powers in a manner that is “open and transparent” (s.588(c) of the FW Act).

[9] In Oji Foodservices the Full Bench noted the diversity of decisions at first instance where Commission members had;

a) approved agreements with orders “that certain matters contained within the agreement (such as pay rates) be kept confidential”,
b) declined such requests. 3

[10] Oji Foodservices was the “first occasion on which this issue [was] the subject of consideration by a Full Bench.” In that matter the Full Bench concluded that,

[48] In our view, s.601(4)(b) requires the Commission to publish in full an ‘enterprise agreement that has been approved by the FWC’. The construction we have adopted reflects the ordinary, everyday meaning of the word ‘publish’.

….

[72] The absence of a publicly available document setting out the wages to which employees employed under an enterprise agreement are entitled creates a barrier to the enforcement of the agreement. Further, as we have mentioned, the redaction of wage rates from a published enterprise agreement makes it impossible for any interested party to form their own view as to whether the agreement met the ‘better off overall test’. Such a consequence is inconsistent with the statutory direction in s.577(c), that the Commission must perform its functions and exercise its powers in a manner that is ‘open and transparent’.

[73] We reject the proposition that s.594 provides the requisite power for an order to redact wage rates from an enterprise agreement that has been approved by the Commission, for the purpose of publication under s.601(4)(b). Indeed, in our view it is not open to the Commission to make an order under s.594(1)(c) prohibiting or restricting publication of any material (including wage rates) that forms part of an approved enterprise agreement.

[74] It follows that the Deputy President lacked the requisite power to make the redaction decision. On that basis the appeal is upheld and the redaction decision is quashed…

[11] I adopt the reasoning of the Full Bench in Oji Foodservices. I discern no difference between a proposal to redact wage rates (rejected by the Full Bench in Oji Foodservices) and the non-publication of appendices containing wage rates. To publish the Silk Contract Logistics Agreement without the wage rates would offend against the requirement highlighted by the Full Bench in Oji Foodservices that the Commission “publish in full an ‘enterprise agreement that has been approved by the FWC. The Silk Contract Logistics Agreement was approved with the appendices. It must be published with the wage rates.

[12] The National Union of Workers (NUW) 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.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 April 2019. The nominal expiry date of the Agreement is 22 April 2022.

COMMISSIONER

Annexure A

 1   [2018] FWCFB 7501.

 2 Ibid [44].

 3   Ibid [28]-[29].

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