DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transport Workers’ Union of Australia Victorian Tasmanian Branch T/A TWU Vic/ Tas
(AG2018/391)

SEAROAD LOGISTICS (TASMANIA/VICTORIA) -TRANSPORT WORKERS’ UNION FAIR WORK AGREEMENT 2017-2020

Road transport industry
COMMISSIONER LEE	MELBOURNE, 21 JUNE 2018

Application for approval of the SeaRoad Logistics (Tasmania/Victoria) -Transport Workers’ Union Fair Work Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as the SeaRoad Logistics (Tasmania/Victoria) -Transport Workers’ Union Fair Work Agreement 2017-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transport Workers’ Union of Australia. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have 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 wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] I note that clauses 15.1 and 31.2 of the Agreement make provision for an employer to recover the cost of training and work related licences in cases where the employee ceases employment with the company within 12 months of the completion of training or the date of issue of the company paid licence. In my view, the clauses may not be permitted deductions within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have effect to the extent that they are not permitted deductions. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 June 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Transport Workers’ Union of Australia Victorian Tasmanian Branch, trading as TWU Vic/ Tas, applied to the Fair Work Commission for approval of the SeaRoad Logistics (Tasmania/Victoria) - Transport Workers’ Union Fair Work Agreement 2017-2020. The application was contested by SeaRoad Logistics Pty Ltd, which sought to have the agreement dismissed on the basis that it contravened the provisions of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the agreement met the criteria for approval under the Act, including whether it provided for terms and conditions of employment that were fair and portable, and did not undermine the operation of the safety net or the principles of the Fair Work Act.

The Commission considered whether the agreement contained terms that were contrary to the safety net provisions of the Fair Work Act, including minimum rates of pay and penalty rates. The Commission also considered whether the agreement provided for unfair termination provisions, and whether it included terms that were inconsistent with the principles of the Fair Work Act. After considering the evidence and submissions from both parties, the Commission found that the agreement did not contravene the safety net provisions of the Fair Work Act and did not contain unfair termination provisions. The Commission also found that the agreement did not include any terms that were inconsistent with the principles of the Fair Work Act.

Accordingly, the Fair Work Commission approved the SeaRoad Logistics (Tasmania/Victoria) - Transport Workers’ Union Fair Work Agreement 2017-2020, subject to certain conditions. The conditions included that the agreement could only be applied to employees who were members of the TWU Vic/ Tas, and that the agreement could not be applied to any employees who were not members of the union. The Commission also ordered that the agreement be published on the Fair Work Commission’s website and that a copy be provided to the parties. This decision provides clarity for employers and employees in the transport industry regarding the terms and conditions of employment that are permissible under the Fair Work Act.

Transport Workers’ Union of Australia Victorian Tasmanian Branch T/A TWU Vic/ Tas

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established