Transpacific Industries Pty Ltd

[2013] FWCA 3637

[2013] FWCA 3637

FAIR WORK COMMISSION

DECISION

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

Transpacific Industries Pty Ltd
(AG2013/6751)

TRANSPACIFIC INDUSTRIAL SOLUTIONS WOLLONGONG ENTERPRISE AGREEMENT 2013

Waste management industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JUNE 2013

Application for approval of the Transpacific Industrial Solutions Wollongong Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Transpacific Industries Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Transpacific Industrial Solutions Wollongong Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). The Agreement is to cover 32 employees who are engaged as operators working from the applicant’s waste management business unit in Unanderra, New South Wales. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 20 December 2012, and voting for the Agreement’s approval took place on 21 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 30 of the 31 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 30 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms J O’Sullivan, Employee Relations Advisor, identified the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] and the Metal, Engineering and Associated Industries (State) Award [AN120334] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms O’Sullivansaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including a wider ordinary spread of hours, a shorter notice period to change shifts and no provision for minimum engagement on public holidays. However, the Agreement also contains a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, more generous penalty rates for overtime and work performed on Saturday afternoons, a meal allowance, a paid crib break and shift allowances for regular shift workers. Rates of pay are to be adjusted by 4% in each year of the Agreement’s nominal term, commencing 18 February 2013. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 28 respectively, and a disputes resolution procedure at clause 27 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application conducted by teleconference on 7 June 2013, Ms J O’Sullivan,appeared for the applicant and Mr B Gorgievski for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Ms O’Sullivan outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that casual loading under the Agreement is slightly more generous than under the Metal, Engineering and Associated Industries (State) Award, but slightly less generous than under the Manufacturing and Associated Industries and Occupations Award 2010. However, the base rates of pay would mean that the employees were still better off overall in any event. She also said that that the first 4% wage increase on 18 February 2013 would be backpaid to employees on the Agreement’s approval by the Commission. Mr Gorgievski supported Ms O’Sullivan’s submissions.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Transpacific Industrial Solutions Wollongong Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 13 June 2013 and have a nominal expiry date of 18 February 2016.

DEPUTY PRESIDENT

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