West Coast Transport Pty Ltd As Trustee For The West Coast Transport Unit Trading Trust T/A De Bruyn’s Transport

[2022] FWCA 2731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

West Coast Transport Pty Ltd As Trustee For The West Coast Transport Unit Trading Trust T/A De Bruyn’s Transport

(AG2022/2390)

DE BRUYN TRANSPORT – OPERATIONAL TEAM MEMBERS – Enterprise Agreement 2022.

Road transport industry
COMMISSIONER LEE	MELBOURNE, 12 AUGUST 2022

Application for approval of the DE BRUYN TRANSPORT – OPERATIONAL TEAM MEMBERS – Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the DE BRUYN TRANSPORT – OPERATIONAL TEAM MEMBERS – 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 West Coast Transport Pty Ltd as Trustee For The West Coast Transport Unit Trading Trust T/A De Bruyn’s Transport. 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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Transport Workers Union of Australia 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.

I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

· • 2.2.1 Notice of Termination by Employees

However, noting the NES precedence clause undertaking of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 August 2022. The nominal expiry date of the Agreement is 19 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved West Coast Transport Pty Ltd, acting as trustee for the West Coast Transport Unit Trust, trading as De Bruyn’s Transport, and its operational team members. The dispute centred around the application for the approval of the De Bruyn Transport – Operational Team Members – Enterprise Agreement 2022. The applicants sought the Commission's endorsement of this agreement, which aimed to set out the terms and conditions of employment for the operational team members.

The primary legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it met the "better off overall test." The Commission needed to assess if the proposed terms and conditions of employment were fair and reasonable, and whether the agreement provided a net benefit to the employees when compared to the applicable minimum standards. Furthermore, the Commission had to consider whether the agreement was made in good faith and if the process leading to the agreement was fair.

In its reasoning, the Commission found that the agreement complied with the statutory requirements and met the "better off overall test." The Commission noted that the agreement contained provisions that were fair and reasonable, and it provided various benefits to the employees, including salary increases and improved working conditions. The Commission was satisfied that the agreement was made in good faith and that the process leading to the agreement was fair. Consequently, the Commission approved the De Bruyn Transport – Operational Team Members – Enterprise Agreement 2022, recognising it as a valid and enforceable enterprise agreement.

The final orders of the Commission were that the De Bruyn Transport – Operational Team Members – Enterprise Agreement 2022 be approved and registered under the Fair Work Act 2009. The agreement would then be applicable to the operational team members of De Bruyn’s Transport, setting out their terms and conditions of employment for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established