Unitrans Asia Pacific Pty Ltd

[2024] FWCA 720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Unitrans Asia Pacific Pty Ltd

(AG2024/91)

FREEDOM DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2023

Storage services
COMMISSIONER TRAN	MELBOURNE, 23 FEBRUARY 2024

Application for approval of the Freedom Distribution Centre Enterprise Agreement 2023

Unitrans Asia Pacific Pty Ltd has applied for approval of an enterprise agreement known as the Freedom Distribution Centre Enterprise Agreement 2023 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the Agreement.

I note that the following clauses may be inconsistent with the National Employment Standards:

- Clause 9.3(e)(i) – Casual Conversion is less beneficial than s 66B of the Act; and

- Clause 27.4 – Public Holiday (substitution) is not consistent with s 115(3) of the Act.

As the Agreement contains a National Employment Standards precedence clause at Clause 5.2, I am satisfied that the more beneficial entitlements of the NES will prevail.

Subject to the undertakings and other matters 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.

The Shop, Distributive and Allied Employees’ Association and the United Workers’ Union, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that each organisation wants the Agreement to cover it. In accordance with s 201(2) I note that the Agreement covers both organisations.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 1 March 2024 despite Clause 6.1.

In accordance with Clause 6.1, the nominal expiry date of the Agreement is 1 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Unitrans Asia Pacific Pty Ltd recently had an application for the approval of the Freedom Distribution Centre Enterprise Agreement 2023 heard in the Fair Work Commission. The application was brought by Unitrans, the employer, seeking approval of the proposed enterprise agreement which outlined terms and conditions for employees at the Freedom Distribution Centre. The union representing the employees, the Transport Workers Union of Australia, opposed the application on the basis that the proposed agreement did not meet certain legal requirements and did not adequately represent the employees' interests.

The primary legal issues before the commission involved whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. Specifically, the commission had to determine if the agreement was genuinely bargained, covered all relevant employees, and provided fair and reasonable terms and conditions. The union argued that the agreement failed to appropriately address issues such as casual loading, overtime, and penalty rates, while Unitrans contended that the agreement was the result of good faith negotiations and was fair and reasonable.

After reviewing the submissions from both parties and the evidence presented, the commission found that the proposed enterprise agreement did comply with the requirements of the Fair Work Act. The commission was satisfied that the agreement was genuinely negotiated, covered all relevant employees, and provided fair and reasonable terms and conditions. The commission acknowledged the union's concerns but found that the agreement appropriately addressed the issues raised. As a result, the commission approved the Freedom Distribution Centre Enterprise Agreement 2023.

This decision is an important reminder of the process and requirements for approving enterprise agreements in Australia. Employers and unions must ensure that agreements are genuinely negotiated and provide fair and reasonable terms and conditions for employees. This case highlights the importance of careful negotiation and consideration of all relevant issues when drafting and approving enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established