Armesto's Transport Pty Ltd T/A Armesto's Transport
[2024] FWCA 3863
•5 NOVEMBER 2024
| [2024] FWCA 3863 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Armesto’s Transport Pty Ltd T/A Armesto’s Transport
(AG2024/3514)
ARMESTO’S TRANSPORT LINE HAUL DRIVERS ENTERPRISE AGREEMENT 2024
| Road transport industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 5 NOVEMBER 2024 |
Application for approval of the Armesto’s Transport Line Haul Drivers Enterprise Agreement 2024
Introduction
Armesto’s Transport Pty Ltd T/A Armesto’s Transport (the Employer) has made an application for approval of an enterprise agreement known as the Armesto’s Transport Line Haul Drivers Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 13 February 2024, and the Agreement was made on 23 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Regulation 2.06 Requirements
The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
Notification of time, place and method of vote
The Employer sent notification of the date and method of the vote via email to employees on 14 August 2024. The email did not specify the time at which the vote would commence per [15] and [16] of the Statement of Principles on Genuine Agreement. The Employer communicated with employees via email on 22 August 2024 as to the time that the vote would commence. The Employer provided submissions that this matter constituted a minor technical error and that it was not likely that any employees were disadvantaged by it.
I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
National Employment Standards (NES) Precedence Term
The notice requirements in relation to personal leave at clause 5.3 of the Agreement are more restrictive than those in s.107 of the Act, which allows notice to be provided after the leave has commenced. Accordingly, clause 5.3 may be inconsistent with the National Employment Standards (NES).
I note that in accordance with the NES precedence term in Clause 1.2.2. of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Road Transport (Long Distance Operations) Award 2020 is taken to be a term of the Agreement.
Section 190 Undertakings
The employer 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The Transport Workers’ Union (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 TWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 November 2024. The nominal expiry date of the Agreement is 31 December 2027.
DEPUTY PRESIDENT
ANNEXURE A
[1] [2019] FWCFB 318.
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