The Trustee for Yerac Unit Trust No 1 T/A Careys Freight Lines

[2016] FWCA 874

[2016] FWCA 874

FAIR WORK COMMISSION

DECISION

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

The Trustee for Yerac Unit Trust No 1 T/A Careys Freight Lines
(AG2016/2084)

CAREYS FREIGHT LINES TRANSPORT WORKERS ENTERPRISE AGREEMENT 2015

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 11 FEBRUARY 2016

Application for approval of the Careys Freight Lines Transport Workers Enterprise Agreement 2015

[1] An application has been made by Careys Freight Lines (the applicant) for the approval of an enterprise agreement known as the the Careys Freight Lines Transport Workers Enterprise Agreement 2015 1(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The title clause at 2.1 of the Agreement states that the Agreement shall be known as “Careys Freight Lines Transport Workers Enterprise Agreement 2014” as opposed to elsewhere in the Agreement, it was referred to as the “Careys Freight Lines Transport Workers Enterprise Agreement 2015”.

[3] The applicant was advised that the Commission identified what appeared to be a typographical error. This was confirmed by the applicant who requested an amendment to the Agreement to reflect the correct title. I am satisfied that the Agreement contains a typographical error and that it should be corrected pursuant to s.586 of the Act.

[4] Pursuant to s.586 of the Act, the Agreement is corrected by the following amendments:

1. Clause 1.2

Remove the definition “Agreement means Careys Freight Lines Transport Workers Enterprise Agreement 2014 and replace with, “Agreement means Careys Freight Lines Transport Workers Enterprise Agreement 2015”.

2. Clause 2.1 :

Remove “Careys Freight Lines Transport Workers Enterprise Agreement 2014” and replace with the correct title, that being “Careys Freight Lines Transport Workers Enterprise Agreement 2015”; and

Coverage

[5] The Agreement covers all employees engaged by the employer as either a “local driver” or a “long distance driver” within the employer’s business. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational distinction of the employees.

[6] The Transport Workers’ Union of Australia, NSW Branch (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) in support of the approval of the Agreement.

Single interest employers

[7] The Commission noted that the application is for a single enterprise agreement, and that the application lists 3 employers who are to be covered by the Agreement, being:

1. Yerac Unit Family Trust T/A Careys Freight Lines;

2. Careys Logistics Pty Ltd; and

3. Imalkin Pty Ltd.

[8] Pursuant to s.172(2) of the Act, the Commission requested the applicant address how 3 employers may make a single enterprise agreement pursuant to the single interest employer test under s.172(5) of the Act.

[9] Mr Carey, the Director of the applicant advised the Commission that the 3 employers to be covered by the Agreement are related bodies corporate, thereby meeting the definition of a single interest employer pursuant to s.172(5)(b) of the Act.

Better off overall test (BOOT)

[10] 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.

[11] The Agreement provides a number of entitlements that are higher in comparison to the Award including:

1. significantly higher rate of pay than the corresponding minimum rate of pay;

2. increased annual leave loading; and

3. greater redundancy pay entitlements.

Approval

[12] Taking into account the greater terms and conditions conferred by the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[13] 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.

[14] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the TWU.

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 18 February 2016. The nominal expiry date of the Agreement is 3 years from the date of approval.

DEPUTY PRESIDENT

 1   As per the amendment, see paragraph 2 of this decision

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