Visy Logistics No 2 Pty Limited T/A Visy Logistics

[2017] FWCA 6100

[2017] FWCA 6100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Logistics No 2 Pty Limited T/A Visy Logistics
(AG2017/3491)

VISY LOGISTICS NO 2 PTY LIMITED - SHEPPARTON ENTERPRISE AGREEMENT

Road transport industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 NOVEMBER 2017

Application for approval of the Visy Logistics No 2 Pty Limited - Shepparton Enterprise Agreement 2017.

[1] An application has been made for approval of the Visy Logistics No 2 Pty Limited - Shepparton Enterprise Agreement 2017. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visy Logistics No 2 Pty Limited T/A Visy Logistics (Visy Logistics). The agreement is a single enterprise agreement.

[2] A notice of employee representational rights was provided to employees on 7 December 2016 1 and the notice complied with the regulations.2 Employees were provided with access to the proposed agreement and information about the effect of the terms of the Agreement along with a notice of the time and place and method of voting was provided to employees on 30 June 2017. Voting occurred between 17 July 2017 and 8 August 2017 and a majority of those who voted approved the Agreement.3

[3] The Transport Workers Union of Australia (TWU) was the bargaining representative on behalf of employees for the Agreement.

[4] Visy Logistics filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test was the Road Transport (Long Distance Operations) Award 2010.

[5] The statutory declaration noted that the provisions in the proposed Agreement were more beneficial than the Award or were not conferred by the Award. No less beneficial terms were identified.

[6] The TWU filed a statutory declaration supporting approval of the Agreement.

[7] Mr R Holland, an employee of Visy Logistics and whose employment would be covered by the proposed agreement, filed material with the Fair Work Commission (Commission) on 16 October 2017 and 13 November 2017 in which he raised concerns and objected to approval of the Agreement. Mr Holland along with another employee Mr C Tomasello sought to be heard in relation to the approval of the Agreement.

[8] A Hearing was conducted by the Commission on 17 November 2017 at which Mr S Koppel appeared for Visy Logistics, Ms T Walton for the TWU and Mr R Holland and Mr C Tomasello also appeared.

The better off overall test

[9] On 23 October 2017, the Commission wrote to Visy Logistics and the bargaining representative and advised that the Commission held concerns in relation to the proposed Agreement. Specifically that:

1. Clause 4 (“Relationship to Award”) of the proposed Agreement referred to the relevant award as underpinning the agreement. It was unclear as to whether the intent of the clause was to “incorporate” the relevant award.

2. Clause 9 of the proposed Agreement did not specify a minimum weekly pay rate for employees and referred to employees being paid “no less than that prescribed by the Award as amended from time to time”.

3. Annexure D of the proposed Agreement contains a payment rate for yard work. Furthermore clause 9.7 of the Agreement provides for payment for local driving work at the cents per km rate and some of the routes specified in Annexure G appear to be less than the 500 km. There is no provision in the Road Transport (Long Distance Operations) Award 2010 for such work, however there is in the Road Transport and Distribution Award 2010.

[10] Visy Logistics replied in correspondence to the Commission on 10 November 2017 with the following undertakings pursuant to s190 of Act:

1. “The provisions of the Road Transport (Long Distance Operations) Award 2010 shall be incorporated into the Agreement.”

2. “Clause 9: Your pay

The minimum weekly rates of pay for ordinary hours of work at the commencement of the Term shall be as follows:

Grade Minimum weekly rate of pay for ordinary hours

Grade 4 $861.46

Grade 6 $902.12

The minimum weekly rates of pay for ordinary hours of work shall further increase on July 1 of each year of the Term by the same percentage increase that is made to the applicable minimum weekly rates of pay in clause 13.1 of the Road Transport (Long Distance Operations Award) 2010, as amended from time to time.”

[11] Visy Logistics also made submissions with the respect to the operation of the Agreement in correspondence to the Commission dated 1 November 2017 in the following terms;

“The operation of the Agreement should be excluded in regards to persons undertaking duties not covered by the Road Transport (Long Distance Operations) Award 2010. For such duties, the existing Visy Logistics (Shepparton Warehouse and Local Enterprise Agreement) 2015 should apply.”

[12] In correspondence to the Commission on 13 November 2017, Mr Holland raised a number of issues with the proposed agreement. Those issues were:

1. Relationship to Award;

2. Payment for driving;

3. Payment for Load/Unload Splitting Trailers;

4. Payment for Waiting;

5. Yard Work;

6. Payment for local work;

7. Superannuation;

8. Meal Breaks;

9. Negotiating next Enterprise Agreement;

10. Annexure G – removal of 32 km radius around GPOs;

11. Extras to be entered into Enterprise Agreement including reduction of term to two years, options to revisit Enterprise Agreement in term due to industry changes and back payment for employees if current Enterprise Agreement runs out and employees to be back paid to start of new Enterprise Agreement.

[13] Visy Logistics responded to Mr Holland’s correspondence on 13 November 2017 and made the following submissions:

1. The Award is now incorporated and the undertakings have been provided to the TWU and employees via the notice board at the workplace;

2. Payment for driving was raised and negotiated with the TWU during bargaining. Additionally, undertakings were provided to the Commission that increased the weekly rate by 8%;

3. Payment for loading/unloading and splitting trailers was raised and negotiated with the TWU during bargaining;

4. The issue of provision for payment for waiting was raised and negotiated with the TWU during bargaining within the Award;

5. The issue of yard work was raised and negotiated during bargaining. The issue has been further addressed in a submission to the Commission;

6. The issue of local work was raised and negotiated during bargaining. The issue has been further addressed in a submission to the Commission;

7. The issue of superannuation was raised and negotiated with the TWU during bargaining;

8. The issue of meal breaks was raised and negotiated with the TWU during bargaining;

9. Visy Logistics were unclear as to the intent of negotiating the next Enterprise Bargaining Agreement issue Mr Holland was referring to;

10. Annexure G was raised and negotiated with the TWU during bargaining; and

11. The three extra issues were raised and negotiated with the TWU during bargaining.

[14] At the Hearing on 17 November 2017, Visy Logistics adopted the submissions they had made in their 13 November 2017 correspondence in relation to the issues raised by Mr Holland and again submitted that the proposed Agreement satisfied the better off overall test. The TWU supported the submissions made by Visy Logistics and also urged the Commission to approve the proposed Agreement. The TWU in making their submissions drew the Commission’s attention to the extended timeframe over which the parties had been in negotiation.

[15] At the Hearing, Mr Holland and Mr Tomasello were invited to elaborate on the issues raised by Mr Holland in his 13 November 2017 correspondence to the Commission. They were specifically requested to identify whether any of the issues identified by them established doubt as to whether the proposed Agreement satisfied the better off overall test when assessed against the relevant Award.

[16] Mr Holland and Mr Tomasello pressed their concern regarding Item 4 payment for waiting, but were unable to substantiate their concerns regarding the other items raised and where those items in the proposed Agreement may have established a better off overall test concern.

[17] The relevant clause within the proposed Agreement dealing with Item 4 payment for waiting reads as follows;

9.5 Payment for waiting

In the course of duties it is envisaged that time may be spent waiting by Drivers for various reasons, including client staff to process vehicles through safety checkpoints and to accept deliveries.

However it is recognised that rare and exceptional circumstances may occur, in which event payment for waiting time will be made for single periods of more than four hours.

In the event that any waiting time is required and has not been specified by the Company in advance, or the duration of the wait is longer or shorter than specified, you must notify operations as soon as reasonably practicable.

For the avoidance of doubt, waiting time of four hours or less continuous hours will not be eligible for payment for waiting time. In respect of any longer continuous period of waiting, the first four hours will be unpaid.

The applicable rate of pay for eligible hours of waiting time is per Annexure B.

[18] There is no analogous provision to that of Clause 9.5 in the proposed Agreement within the Road Transport (Long Distance Operations) Award 2010.

[19] I note that both the Award at Clause 22 and the proposed Agreement at Clause 9.4 have provisions in similar terms dealing with delays arising from breakdowns or impassable highways.

[20] I also note that the both the Award at Clause 13.6 and the proposed Agreement at Clause 9.2 have provisions in similar terms dealing with loading and unloading duties.

Consideration

[21] I have considered both the written and verbal submissions of the parties in relation to the proposed Agreement.

[22] I accept Visy Logistics’ submission in its 1 November 2017 correspondence regarding the exclusion of the Agreement’s coverage of persons undertaking duties not covered by the Road Transport (Long Distance Operations) Award 2010. For such duties, the existing Visy Logistics (Shepparton Warehouse and Local Enterprise Agreement) 2015 should apply.

[23] Item 1 in Mr Holland’s submission has been addressed by an undertaking provided to the Commission in correspondence from Visy Logistics dated 10 November 2017. I am also satisfied that Visy Logistics has appropriately communicated with both the TWU as the bargaining representative and its employees in providing that undertaking.

[24] In regards to the payment for waiting issue (Item 4), the Road Transport (Long Distance Operations) Award 2010 is silent on the benefit provided for in the Agreement. It is also clear that the payment for waiting allowance is distinguishable from and in addition to other benefits provided for in the Agreement that closely reflect Award provisions. Specifically, payment for loading and unloading (Clause 9.2 in the Agreement) and payment for breakdown or impassable highways (Clause 9.4 in the Agreement). I am therefore satisfied that the benefit conferred at Clause 9.5 in the Agreement is over and above the Award and is therefore beneficial in terms of the better off overall test assessment.

[25] Mr Holland and Mr Tomasello were unable to identify where any of the other issues (Items 2, 3 and 5-11) raised by them established a concern in relation to the better off overall test. I have had regard to both Visy Logistics and the TWU’s submissions in which they have referred to the lengthy bargaining process and submitted that the issues raised by Mr Holland were canvassed and ultimately agreed to during bargaining and that none of those items raised a better off overall test concern.

[26] It would appear to the Commission that the issues raised by Mr Holland were more concerns regarding the substantive bargaining outcome rather than whether the proposed Agreement failed to satisfy the better off overall test requirements. I am not satisfied that those issues raised by Mr Holland established that the proposed Agreement failed to meet the better off overall test.

Other concerns

[27] Mr Holland also raised concerns in his correspondence dated 16 October 2017 and in verbal submissions during the Hearing, that employees did not understand what they were voting on when they approved the Agreement in the ballot. Mr Holland did not challenge the veracity of the information provided by Visy Logistics in its Statutory Declaration (F17) as to the process that it undertook in communicating the details of the proposed Agreement to employees.

[28] It may well be that some employees chose not to take an interest in the information provided and presented to them by their employer and the TWU as to the progress and ultimately the concluded agreement on which they voted. The fact that some employees may have been disinterested does not mean that Visy Logistics failed to take reasonable steps to explain the terms of the Agreement to their employees. No evidence was presented that contradicted or undermined the information contained within Visy Logistics Statutory Declaration (F17).

Conclusion

[29] A copy of Visy Logistics undertakings are attached in Annexure A. Having heard from Visy Logistics, the TWU (bargaining representative) and employees Mr Holland and Mr R Tomasello I am satisfied that the Agreement with the undertakings passes the better off overall test.

[30]  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.

[31] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[32] The TWU, 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.

[33] The Agreement was approved on 22 November and, in accordance with s.54 of the Act, will operate from 29 November 2017. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Annexure A

 1   s.173 of the Act

 2   s.174 of the Act

 3   s.180 of the Act

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