UPS Pty Ltd

[2023] FWCA 2882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UPS Pty Ltd

(AG2023/2876)

UPS (SMALL PACKAGES) ENTERPRISE AGREEMENT 2022

Road transport industry
COMMISSIONER TRAN	MELBOURNE, 7 SEPTEMBER 2023

Application for approval of the UPS (Small Packages) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the UPS (Small Packages) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by UPS Pty Ltd.

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.

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.

I note that Clause 12.5 is inconsistent with the National Employment Standards as it does not provide for the requirement of an employer to offer casual conversion to eligible employees as set out in s 66B of the Act. Given the National Employment Standards precedence clause set out in the undertaking attached to the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Transport Workers’ Union, 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.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 14 September 2023.

The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by UPS Pty Ltd for the approval of the UPS (Small Packages) Enterprise Agreement 2022. The agreement was intended to cover approximately 1,000 employees within the company’s small packages division. The primary dispute centred around the terms and conditions of employment, remuneration, and other workplace provisions outlined in the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement was fair and reasonable under the Fair Work Act 2009.

The key legal issues the Commission needed to address included whether the agreement complied with the "better off overall test," which requires that employees be no worse off financially under the new agreement compared to their existing terms, and whether the agreement met the procedural fairness requirements, including adequate consultation with employees and the provision of necessary information. The Commission also examined whether the agreement adhered to the general principles of workplace relations and whether it provided for appropriate protections and entitlements for employees.

The Fair Work Commission found that the proposed agreement met the "better off overall test" and satisfied the procedural fairness requirements. The Commission noted that the agreement provided for appropriate remuneration and conditions of employment that were consistent with industry standards. Furthermore, the consultation process undertaken by UPS Pty Ltd was deemed adequate, ensuring employees had a reasonable opportunity to understand and provide feedback on the proposed changes. The Commission concluded that the agreement was fair and reasonable, thus granting approval for its implementation.

In granting the approval, the Fair Work Commission issued orders confirming the approval of the UPS (Small Packages) Enterprise Agreement 2022. The agreement was to be registered and would come into effect on the date specified in the agreement, providing the new terms and conditions for the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established