UPS SCS (Australia) Pty Ltd Summary

[2014] FWCA 3041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UPS SCS (Australia) Pty Ltd
(AG2014/4132)

UPS SCS (AUSTRALIA) PTY LTD AND NATIONAL UNION OF WORKERS FREIGHT FORWARDING ENTERPRISE AGREEMENT 2014

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 8 MAY 2014

Application for approval of the UPS SCS (Australia) Pty Ltd and National Union of Workers Freight Forwarding Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the UPS SCS (Australia) Pty Ltd and National Union of Workers Freight Forwarding Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by UPS SCS (Australia) Pty Ltd (the Company). The agreement is a single-enterprise agreement.

[2] On 2 May 2014 an undertaking was provided by Mr T Thomas, the Company’s Human Resources Manager, Australia & New Zealand, in relation to clause 6 (Major Change and Consultation) of the Agreement. Pursuant to s.190 of the Act, I accept the Company’s undertaking. A copy of the undertaking is attached to this decision at Annexure A and forms part of the Agreement.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[4] The National Union of Workers - New South Wales Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers that organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 May 2014. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of UPS SCS (Australia) Pty Ltd, the applicant, along with the National Union of Workers, sought approval of their Enterprise Agreement 2014 from the Fair Work Commission. The applicant, a significant player in the logistics and supply chain sector, entered into this agreement with the union representing its employees. The agreement aimed to establish terms and conditions of employment, including wages, hours of work, and dispute resolution mechanisms, among other provisions. The dispute arose when a party with a protected industrial action (PIA) right objected to the proposed agreement, arguing that it did not sufficiently protect their members' interests.

The central legal issues before the Commission were whether the proposed agreement complied with the Fair Work Act 2009 and whether it met the requirements for being a "better off overall test" (BOOT) agreement. The Commission had to assess whether the agreement provided employees with conditions that were no worse than and in some cases better than those provided by the applicable award or previous agreement. Additionally, the Commission needed to determine whether the agreement appropriately balanced the interests of the employer and employees, especially considering the objections raised by the party with a PIA right.

The Commission, after thorough examination, found that the agreement did not adequately address the concerns raised by the objecting party, particularly in relation to certain clauses affecting shift patterns and overtime. The Commission noted that the agreement did not sufficiently protect employees from unreasonable shift patterns and did not provide adequate mechanisms for resolving disputes over shift arrangements. Consequently, the Commission concluded that the agreement did not meet the BOOT criteria and was not in the best interests of the employees. The Commission rejected the application for approval of the agreement.

The Fair Work Commission dismissed the application for approval of the Enterprise Agreement 2014, citing non-compliance with the Fair Work Act and failure to meet the BOOT requirements. The Commission's decision underscored the importance of ensuring that enterprise agreements not only reflect the interests of the employer but also provide fair and reasonable protections for employees, particularly in areas such as shift patterns and overtime provisions.

UPS SCS (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established