United Imports & Exports Co Pty Ltd T/A Bidvest Wollongong

[2016] FWCA 4983

[2016] FWCA 4983

FAIR WORK COMMISSION

DECISION

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

United Imports & Exports Co Pty Ltd T/A Bidvest Wollongong
(AG2016/1812)

BIDVEST WOLLONGONG - ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 17 AUGUST 2016

Application for approval of the Bidvest Wollongong - Enterprise Agreement 2016

[1] An application has been made by United Imports & Exports Co Pty Ltd T/A Bidvest Wollongong (the applicant) for the approval of an enterprise agreement known as the Bidvest Wollongong - Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all warehouse and distribution employees at Bidvest Wollongong Foodservice Branch located at 40a Rivulet Crescent, Albion Park Rail, NSW 2527. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The Transport Workers’ Union of Australia (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement and wishes to be covered by the Agreement.

[4] The Commission wrote to the applicant raising concerns in relation to:

● Shiftworkers; and

● The better off overall test (BOOT).

Shiftworkers

[5] In the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement, the employer declared that shift workers can be employed under the Agreement, however, noted that shiftworkers employed by the employer work static shift rosters five days a week (Monday to Friday) and would therefore not classify as a seven day shiftworker for the purposes of clause 26.4 (definition of shiftworker) of the Storage Services and Wholesale Award 2010, being the award that covers shiftworkers employed by the employer.

[6] The Commission wrote to the applicant noting the concern that if seven day shiftworkers were employed under the Agreement, the Agreement would not treat those employees as shiftworkers for the purposes of the National Employment Standards and provide an additional week’s annual leave.

[7] The applicant has provided an undertaking that the employer will not engage an employee as seven day shiftworker under the Agreement.

Better off overall test

Overtime for part time employees

[8] With respect to the better off overall test (BOOT) under s.186 of the Act, the Road Transport and Distribution Award 2010 and the Storage Services and Wholesale Award 2010 (the Awards) are the relevant reference instruments. The Awards provide that before any part time employees commence employment, the employer and employee are to agree upon regular patterns of work. Time worked in excess of agreed upon hours shall be paid at the overtime rate provided in the relevant award.

[9] The Commission wrote to the applicant with the concern that under the Agreement part time employees may be worse off because the Agreement allowed employers to roster part time employees up to the maximum number of hours per week without payment of overtime.

[10] The applicant has provided an undertaking that part time employees will have predictable and agreed hours of work, and where additional hours are worked those hours will attract the payment of overtime.

Casual loading for overtime and public holidays

[11] The Commission wrote to the applicant with the concern that casual employees performing significant overtime and working a significant number of public holidays may not be better off overall under the Agreement due to the loss of casual loading on those hours of work which they would otherwise be entitled to under the Awards.

[12] The applicant has provided an undertaking that the sub clauses (d) and (e) of clause 4.1.4 of the Agreement, being the clause removing the casual loading from overtime and public holiday hours worked, will not be applied by the employer.

Conclusion

[13] Taking into account the higher rates of pay under the Agreement when compared with the Awards, and the undertakings provided, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

Undertakings

[14] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. A copy of the undertakings was provided to and consented to by the TWU by way of email. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertakings should be brought to the attention of the employees covered by the Agreement by the applicant.

[15] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[16] 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.

[17] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

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Annexure A