TNT Australia Pty Ltd

[2018] FWCA 3654

[2018] FWCA 3654

FAIR WORK COMMISSION

DECISION

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

TNT Australia Pty Ltd
(AG2017/5084)

"TNT - TWU FAIR WORK AGREEMENT 2017 - 2020"

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 22 JUNE 2018

Application for approval of the “TNT - TWU Fair Work Agreement 2017 – 2020”.

[1] An application has been made for approval of an enterprise agreement known as the “TNT - TWU Fair Work Agreement 2017 - 2020” (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by TNT Australia Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 26 October 2017. On 2 May 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of James Morley made on behalf of the Employer and dated 25 October 2017 (the Declaration). The Declaration stated that the Agreement was made on 12 October 2017. Therefore the application was made within the 14 day time limit established by subsection 185 (4) of the Act.

[3] The application for approval was listed for Hearing on 29 May 2018, at which time Mr S Woodbury from Ashurst Australia lawyers, was granted permission to appear for the Employer and Ms L Biviano and Mr G Webb appeared for the Transport Workers’ Union of Australia (TWU). During the proceeding held on 29 May, the Commission identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Mr Woodbury and Ms Biviano provided some important clarifications during the Hearing. The Commission was also provided with additional evidentiary material in support of the application. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 13 June 2018, from Ashurst Australia, which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s. 190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application provided during the Hearing, and subsequently, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have reviewed the contents of the Declaration, the further material in support of the application and the Undertakings. As a result of the consideration of these materials I am satisfied that, inter alia, the procedural requirements of Part 2-4 of the Act have been met.

[7] I note that the Agreement contains a flexibility term at clause 7 and a consultation term at clause 13.

[8] I am prepared to accept the Undertakings. As provided by s. 191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[9] The 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. As required by subsection 201 (2) of the Act I note that the Agreement covers the TWU.

[10] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act it will operate from 29 June 2018. The nominal expiry date of the Agreement as specified in clause 2.2 of the Agreement, is 30 June 2020.

COMMISSIONER

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