Zarb Road Transport Pty Ltd

[2022] FWCA 4456

[2022] FWCA 4456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Zarb Road Transport Pty Ltd

(AG2022/4875)

Zarb Road Transport Enterprise Agreement 2022

Sugar industry
COMMISSIONER HUNT	BRISBANE, 16 DECEMBER 2022

Application for approval of the Zarb Road Transport Enterprise Agreement 2022

1. Zarb Road Transport Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Zarb Road Transport Enterprise Agreement 2022 (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.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. 

1. The Australian Workers’ Union (AWU) raised a number of concerns in relation to the Agreement, particularly that the better off overall test should be measured against the Road Transport and Distribution Award 2020, as opposed to the Sugar Industry Award 2020. Following correspondence from my chambers in relation to earlier applications to approve past enterprise agreements involving the Employer and the same group of employees, the AWU sought time to obtain instructions from members.  On 15 December 2022, the AWU advised that it did not press the objection.   

1. On the material before me relating to earlier iterations of the Agreement, it appears that the Commission has been satisfied that the appropriate modern award for the purposes of the better off overall test is the Sugar Industry Award 2010 (as it was then).  While there has not been a definite decision confirming such, undertakings have been given and accepted nominating the Sugar Industry Award 2010. 

1. In approving the Zarb Road Transport Enterprise Agreement 2019 [2019] FWCA 6337, Deputy President Mansini conducted a telephone hearing, where she heard evidence from Ms Louise Appleton, Organisational Capabilities Manager as to the cartage work of sugar products conducted by the Employer.  The AWU appeared at the telephone hearing and informed the Deputy President that it was satisfied, at that time, that the Sugar Industry Award 2010 was the appropriate award for the better off overall test to be tested against. The 2019 agreement was approved the following day.

1. There is no evidence before the Commission to disturb the earlier inferred but apparent conclusion that the Sugar Industry Award 2020 is the appropriate award to test against.   The Employer submits that the work of the Employer is appropriately covered by the Sugar Industry Award 2020.

1. 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.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I have taken into consideration the material filed in the Commission. 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. 

1. The AWU 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) of the Act I note that the Agreement covers the AWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 December 2022.  The nominal expiry date of the Agreement is 16 December 2025.

COMMISSIONER

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Annexure A – Undertakings