Silk Contract Logistics Pty Ltd T/A Silk Contract Logistics Pty Ltd

[2024] FWCA 3158

[2024] FWCA 3158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Silk Contract Logistics Pty Ltd T/A Silk Contract Logistics Pty Ltd

(AG2024/3057)

SILK CONTRACT LOGISTICS PTY LTD BRISBANE PORT LOGISTICS ENTERPRISE AGREEMENT 2024

Road transport industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 30 AUGUST 2024

Application for approval of the Silk Contract Logistics Pty LtdBrisbane Port Logistics Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Silk Contract Logistics Pty Ltd Brisbane Port Logistics Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Silk Contract Logistics Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. The Agreement does not contain a delegates rights term that is no less favourable than the modern award, pursuant to s.205A, and on that basis the term in the relevant modern award will apply and the delegates’ rights term in the Agreement at clause 9.1 will have no effect.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

·  Clause 4.3.2 – Notice of personal leave

·  Clause 4.4 – Compassionate leave

·  Clause 5.2.4 – Casual Conversion

·  Clause 6.1.2 – Withholding of NES entitlements

·  Clause 6.2 – Abandonment.

·  Clause 6.3.1 – Redundancy Pay

However, noting clause 1.1.5 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.

1. The Transport Workers’ Union of Australia (TWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the TWU.

1. The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered these submissions but have determined that given the more beneficial terms of the Agreement and the undertakings given, the Agreement passed the BOOT.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 10 August 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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