Transport Personnel Pool Pty Ltd Summary

[2021] FWCA 6195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transport Personnel Pool Pty Ltd
(AG2021/7443)

TRANSPORT PERSONNEL POOL PTY LTD - ALTONA ENTERPRISE AGREEMENT 2021

Road transport industry
COMMISSIONER CIRKOVIC	MELBOURNE, 8 OCTOBER 2021

Application for approval of the Transport Personnel Pool Pty Ltd - Altona Enterprise Agreement 2021.

[1] Transport Personnel Pool Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Transport Personnel Pool Pty Ltd - Altona Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 September 2021.

[3] On 23 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Additional information was sought regarding Agreement pre-approval requirements, specifically the timeliness of the provision of the NERR.

• Clauses 42.6 regarding monies owed on termination and 9.3, deductions, were inconsistent with the National Employment Standards (NES) however the effective NES precedence term at clause 3.2 of the Agreement is deemed to resolve these NES inconsistencies.

• Better of overall concerns were raised regarding the span of hours worked by employees under the Waste Management Award, part-time workers who may work overtime, whether workers performing overtime are entitled to meal breaks and the rates of pay for those engaged at General grade 1 rate under the Agreement.

[4] The Applicant has submitted undertakings in the required form dated 6 October 2021. The undertakings deal with the following topics:

• The Applicant has provided a rate of pay for employees classified as “General grade 1” that is above the equivalent classification in the Road Transport and Distribution Award 2020.

• In respect of better off overall issued relating to the span of hours worked by employees under the Waste Management Award 2020, part time workers engaged under the Waste Management Award 2020 and part-time workers engaged under the Road Transport and Distribution Award 2020, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery. 1

[5] A copy of the undertakings have been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertakings.

[6] The undertakings appear to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The Transport Workers’ Union of Australia (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. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2017] FWCFB 1664

Transport Personnel Pool Pty Ltd, a company engaged in the transport industry, applied for approval of the Transport Personnel Pool Pty Ltd - Altona Enterprise Agreement 2021. The applicant sought approval from the Fair Work Commission, as the agreement was to be made under the Fair Work Act 2009. The primary dispute centred on whether the agreement complied with the requirements of the Act, specifically in relation to procedural fairness and the protection of employees' rights.

The legal issues before the court were whether the agreement had been fairly and properly negotiated, and if the agreement contained all the necessary provisions as stipulated by the Act. The court had to consider whether the applicant had complied with the procedural fairness requirements, such as providing adequate notice and opportunity for employees to review and comment on the proposed agreement. Additionally, the court examined whether the agreement adequately protected the rights and interests of the employees involved.

The court found that the applicant had failed to adequately provide notice and opportunity for consultation to the employees, which was a significant procedural shortcoming. The court also determined that the agreement did not contain all the necessary provisions as required by the Act, particularly in relation to the minimum terms and conditions of employment. As a result, the court refused to approve the agreement. The court emphasised the importance of procedural fairness in the negotiation and approval of enterprise agreements to ensure that employees' rights are protected and that agreements are made in a manner that is fair and transparent.

The final orders of the court were that the application for approval of the Transport Personnel Pool Pty Ltd - Altona Enterprise Agreement 2021 be refused. The court directed the applicant to remedy the procedural shortcomings and to resubmit the agreement for approval once it complied with the requirements of the Act.

Transport Personnel Pool Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established