Wymap Group Pty Ltd

[2016] FWCA 5601

[2016] FWCA 5601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Wymap Group Pty Ltd
(AG2016/3440)

WYMAP GROUP PTY LIMITED ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 17 AUGUST 2016

Application for approval of the Wymap Group Pty Limited Enterprise Agreement 2016.

[1] An application has been made by Wymap Group Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Wymap Group Pty Limited Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers heavy rigid and multi combination – heavy combination truck drivers. As per the requirements under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The application indicated that the Transport Workers’ Union of Australia (TWU) was an employee organisation involved in the Agreement making process as bargaining representative.

[4] The Commission wrote to the applicant raising concerns relating to:

● Shiftworkers;

● Classifications;

● Hours and shifts;

● The better off overall test (BOOT).

Shift workers

[5] In the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, the employer declared that shift workers can be employed under the Agreement, however clause 4.1(f) of the Agreement did not define a shiftworker for the purposes of the NES as required by s. 196(2) of the Act.

[6] The Commission raised this concern with the applicant who has provided an undertaking that shiftworkers will be defined for the purposes of the NES.

Classifications

[7] The Commission wrote to the applicant noting that that Agreement does not provide a rate of pay for a permanent “Operator, Heavy Rigid” employees employed for less than 12 months, although it provides this as a classification.

[8] In its revised wage table (point 5 of undertakings) the applicant has removed the “>12 months” thereby making the wage rate applicable to all operators of heavy rigid vehicles.

Hours and shifts

[9] The Commission wrote to the applicant to clarify whether Schedule A – point 4 is correct. Point 4 states that local drivers will work hours of 152 hours over 20 days with a maximum of 20 appearances, which would suggest that employees could work every day and that mathematically they would work more than 38 hours per week.

[10] The applicant has provided an undertaking (point 2 of undertakings) amending Point 4 so that employees will work 152 ordinary hours over 28 days with a maximum of 20 appearances.

Better off overall test (BOOT)

[11] In its correspondence to the applicant, the Commission noted that the Agreement contains a number of provisions that might leave some employees worse off under the Agreement than under the Road Transport Distribution Award 2010 (the Award), being one of the relevant modern awards for the purpose of the better off overall test.

Sunday Rates

[12] The Commission wrote to the applicant expressing concern that although permanent and casual employees are paid above the Award when they work Monday to Friday, Saturdays, Sundays and when they perform shift work and public holiday work, permanent multi combination-heavy combination operators and casual heavy rigid operators who work only on Sundays may not be better off under the Agreement.

[13] The applicant has provided an undertaking (point 5 of undertakings) with a revised wage table that lifts the hourly Sunday Agreement rate to be above the hourly Sunday Award rate at test time.

Overtime

[14] The Commission wrote to the applicant expressing the concern that because the Agreement does not provide any overtime entitlements to permanent and casual employees, such that all overtime hours are paid at the applicable flat rate of pay, some employees working additional hours may not be better off under the Agreement.

[15] The applicant has provided an undertaking (point 3 of undertakings) capping the number of additional hours that certain employees may work so that they are better off under the Agreement.

Long Haul Drivers

[16] In its correspondence to the applicant, the Commission noted that the Agreement contains a number of provisions that might leave some employees worse off under the Agreement than under the Road Transport (Long Distance Operations) Award 2010 (the LD Award), being the relevant modern award for the purpose of the better off overall test for employees engaged in long haul work.

[17] The Commission noted that under the Agreement, employees engaged in long haul work would not be better off under the Agreement because:

● The rate of pay and conditions are at, and not above, the LD Award; and

● Driving time would not include time lost due to breakdowns or road obstructions as it would under the clause 22 of the LD Award; and

● It is unclear whether employees would receive guaranteed minimum payments. Loading/unloading rates and any applicable allowances which are prescribed by the LD Award.

[18] The applicant has provided an undertaking (point 4 of undertakings) providing that, notwithstanding the provisions of the Agreement, entitlements at or above the LD Award will apply in the circumstances outlined above.

Conclusion

[19] Taking into account the higher rates of pay and the undertakings provided I am satisfied that the Agreement results in employees being better off under the Agreement.

Undertakings

[20] The undertakings are taken to be a term of the Agreement and a copy is attached and marked Annexure A. A copy of the undertakings was provided to the TWU. The undertakings are not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertakings should be brought to the attention of the employees covered by the Agreement by the applicant.

[21] The TWU and has stated that it wishes to be covered by the Agreement, and in accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

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

[23] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

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Annexure A