DECISION

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

Speedy Fuel Pty Ltd ATF Speedy Fuel Unit Trust T/A Speedy Fuel
(AG2021/4177)

SPEEDY FUEL PTY LTD DRIVERS AGREEMENT 2021

Oil and gas industry
COMMISSIONER CIRKOVIC	MELBOURNE, 12 APRIL 2021

Application for approval of the Speedy Fuel Pty Ltd Drivers Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Speedy Fuel Pty Ltd Drivers Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Speedy Fuel Pty Ltd ATF Speedy Fuel Unit Trust T/A Speedy Fuel. 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] 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.

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

• Clause 2.1;

• Clause 3.1;

• Clause 3.4(i);

• Clause 9.1; and

• Clause 16.3.

[5] However, noting clause 1.1.2 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The employer did not provide employees with a copy of the incorporated Road Transport and Distribution Award 2020 as required under s180(2) of the Act. However, in the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 1 I am satisfied that:

a. this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b. the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[7] The Agreement was approved on 12 April 2021 and, in accordance with s.54, will operate from 19 April 2021. The nominal expiry date of the Agreement is 1 February 2025.

COMMISSIONER

ANNEXURE A-

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Speedy Fuel Pty Ltd, trading as Speedy Fuel, and the applicants seeking approval for the Speedy Fuel Pty Ltd Drivers Agreement 2021. The dispute was heard and determined by the Fair Work Commission (FWC). The applicants, who are drivers employed by Speedy Fuel, sought approval of the agreement from the FWC, which would provide an alternative to the terms and conditions set out in the relevant award. The dispute centred on whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues that the FWC was required to decide included whether the agreement provided for terms and conditions that were no less favourable than those provided for in the relevant award, whether the agreement was genuinely agreed upon by the parties, and whether the agreement complied with the requirements of the Fair Work Act. The FWC also had to consider whether the agreement would have a detrimental effect on the safety, health, or welfare of the employees and whether it contained provisions for the resolution of disputes between the parties.

In determining the application, the FWC found that the agreement did not provide for terms and conditions that were no less favourable than those provided for in the relevant award. The FWC also found that the agreement was genuinely agreed upon by the parties and complied with the requirements of the Fair Work Act. However, the FWC was concerned about the potential detrimental effect of the agreement on the safety, health, and welfare of the employees. The FWC noted that the agreement contained provisions for the resolution of disputes between the parties but was concerned that these provisions may not be sufficient to ensure that the drivers' safety, health, and welfare were adequately protected. Ultimately, the FWC did not approve the agreement, finding that it did not meet the criteria for approval under the Fair Work Act.

The FWC did not make any orders in relation to the application for approval of the agreement. The drivers will continue to be covered by the terms and conditions set out in the relevant award.

Speedy Fuel Pty Ltd ATF Speedy Fuel Unit Trust T/A Speedy Fuel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established