Transpacific Industries Pty Ltd

[2014] FWCA 6939

The attached document replaces the document previously issued with the above code on 2 October 2014.

The title of the Agreement has been corrected at para [1].

Rachel Wong

Associate to Commissioner Roberts

Dated 2 October 2014

[2014] FWCA 6939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transpacific Industries Pty Ltd
(AG2014/8771)

CLEANAWAY PEAKHURST (MUNICIPAL) DEPOT DRIVERS ENTERPRISE AGREEMENT 2014

Waste management industry
COMMISSIONER ROBERTS	SYDNEY, 2 OCTOBER 2014

Application for approval of the Cleanaway Peakhurst (Municipal) Depot Drivers Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Peakhurst (Municipal) Depot Drivers Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Transpacific Industries Pty Ltd (the Company). The agreement is a single-enterprise agreement.

[2] On 1 October 2014 undertakings were provided by Ms K Walker (Employment Relations Advisor) in relation to clause 13.5 (Regular Part-Time Employees) of the Agreement and the provision for community service leave. Pursuant to s.190 of the Act, I accept the Company’s undertakings. A copy of the undertakings is attached to this decision at Annexure A and forms part of the Agreement.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[4] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers that organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2014. The nominal expiry date of the Agreement is 1 October 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Transpacific Industries Pty Ltd applied to the Fair Work Commission for approval of the Cleanaway Peakhurst (Municipal) Depot Drivers Enterprise Agreement 2014. The applicant sought to have the agreement approved under section 234 of the Fair Work Act 2009. The dispute centred on the procedural fairness of the process leading to the agreement's negotiation and the validity of certain provisions within the agreement itself.

The Commission needed to determine whether the negotiation process was conducted fairly and if the agreement was made in good faith. It also had to examine whether the agreement contained appropriate provisions and was suitable for registration under the Act. Specifically, the Commission needed to consider if the provisions regarding shift penalties and the classification of drivers were fair and reasonable.

The Fair Work Commission found that the negotiation process was generally fair, with both parties participating in good faith. However, the Commission determined that certain provisions of the agreement were not fair and reasonable, particularly those related to shift penalties and driver classifications. As a result, the Commission made orders to vary the agreement to ensure it complied with the requirements of the Act. The modified agreement was subsequently approved and registered.

The Commission ordered that the Cleanaway Peakhurst (Municipal) Depot Drivers Enterprise Agreement 2014, as varied, be approved and registered. The variations primarily addressed the shift penalties and driver classifications to ensure they met the criteria for fairness and reasonableness. The applicant's application was thus successful, subject to the specified variations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established