Colavon Pty Ltd T/A Thormans Transport

[2010] FWA 3942

[2010] FWA 3942

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Colavon Pty Ltd T/A Thormans Transport
(AG2010/622)

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 24 MAY 2010

Application for approval of the Colavon Pty Ltd - Enterprise Agreement .

[1] An application has been made for approval of an enterprise agreement known as the Colavon Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Colavon Pty Ltd T/A Thormans Transport (the Employer). The Agreement is a single-enterprise agreement.

[2] The application appears to have been lodged at Sydney on 15 March 2010. However the application document is date stamped as being received by Fair Work Australia, New South Wales on 7 May 2010. There appears to have been some technical problems associated with the electronic lodgement of the application documents. In any event, the application was allocated to me on 10 May 2010.

[3] The application included a purported Statutory Declaration of Ellen Thorman, made on behalf of the Employer and dated 15 March 2010, (the purported Statutory Declaration). The purported Statutory Declaration stated that the Agreement was made on 10 March 2010. Assuming that the electronic lodgement of something that subsequently appears to be the application, satisfied the term “made” as contained in subsection 185 (3) of the Act, the application was made within the 14 day lodgement time limit established by that subsection of the Act.

[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. Evidence of the procedural requirements is established by way of the prescribed Form F17, in this case the purported Statutory Declaration.

[5] An important deficiency has been identified in respect to the witness provisions of the purported Statutory Declaration. It appeared that the purported Statutory Declaration had been witnessed by a Jemima Mills who gave the qualification of “Office Manager” in connection with the witnessing of the purported Statutory Declaration. An Office Manager is not specified as an occupation or a person before whom a Statutory Declaration may be made in accordance with Schedule 2 of the Statutory Declarations Regulations 1993.

[6] It would be conceivable that the identified deficiency with the purported Statutory Declaration could have arisen from understandable mistake. However any proper process to permit correction would require a Hearing of the application. In a practical sense, as many of the terms of the Agreement appear to fail the better off overall test, it would be potentially more costly and inconvenient to the applicant employer to allow the application to proceed.

[7] There were numerous provisions of the Agreement which were identified as providing for concern with respect to the better off overall test. In addition there were a number of provisions in the Agreement which appeared to be obsolete and or irrelevant terms that were “carried” into the document from previous industrial instruments or other prescriptions of one form or another. Unfortunately therefore the Agreement gave the appearance of a document that had not been created with sufficient care and attention so as to represent an industrial instrument worthy of approval.

[8] An initial examination of the Agreement identified the following provisions as issues of concern with regard to the better off overall test or were provisions which appeared to have been incorporated into the document in error:

• Clause 2 of the Agreement stated inter alia: “The provisions of this agreement shall over-ride the provisions of the Road Transport Award hereafter known as the parent award to the extent of any inconsistency …” Similarly, point 3.1 of the purported Statutory Declaration made reference to “ROAD TRANSPORT AWARD”. Presumably these references were meant to be made to the modern Award being the Road Transport and Distribution Award 2010, (MA000038).



• Clause 6.1 of the Agreement referred to “the Industrial agreed Skills Matrix”. However no matrix was identifiable from either the Agreement or MA000038.



• Clause 7.2 of the Agreement mentioned “the Federal Industrial Relations Act.”



• Clause 9.3 of the Agreement attempted to establish that any failure to observe any (unspecified) Occupational Health and Safety policies, Acts, Regulations or Industry Codes of Practice, shall constitute gross misconduct.



• Clause 10.1 of the Agreement attempted to establish that ordinary hours of work could include work on any day of the week and at any time of day or night. This clause needed to be contrasted with clause 22 of MA000038.



• Clause 13 of the Agreement stated: “Overtime worked will be paid in the following formula: On the agreement of Staff to work overtime, Staff will be paid at the normal hourly rate or at the kilometre rate set down by the Road Transport Award - depending on driving and waiting time.” These provisions needed to be contrasted with the terms of clause 27 of MA000038.



• Clause 16 of the Agreement stated: “The probationary period will be to assess the Employees [sic] ability to work in conjunction with individual transitional workplace Agreement and to assess the employees’ ability to work in conjunction with the scope of work that the Company performs as outlined in clause 3 of this agreement.” There was no identification of any individual transitional workplace Agreement that might be applicable, and clause 3 of the Agreement is entitled “Term of Agreement” and stated in full, “This agreement shall operate from the date of certification for a Three-year period.”



• Clause 16 of the Agreement also mentioned “the award”. Presumably this should be a reference to MA000038.



• Clause 18 of the Agreement stated that: “All casual employees will be employed under the terms and conditions and paid the rates of this agreement.” Unfortunately the Agreement does not contain any stipulated wage rates.



• Clause 20 of the Agreement stated at 20.1: “Wages – The wage rates of this agreement shall be increased as wage case decisions are handed down by the Federal Industrial Commission.” Unfortunately the Agreement does not contain any stipulated wage rates.



• Clause 20.3 of the Agreement mentioned “the award”. Presumably this should be a reference to MA000038.



• Clause 20.6 of the Agreement stated: “Public Holidays - Employees who work on any public holiday will receive the ordinary rate of pay. In addition to this employees will receive one day extra on their Annual Leave Entitlements.” These provisions needed to be contrasted with the terms of clause 28.2 of MA000038.



• Clause 20.7 of the Agreement mentioned “the award”. Presumably this should be a reference to MA000038.



• Clause 28 of the Agreement mentioned the “Federal Industrial Relations Commission (AIRC).”



• Clause 29 of the Agreement stated: “The parties to this agreement shall not make any extra claims for any increases in rates of pay or allowance [sic] during the term of this agreement.” Unfortunately the Agreement does not contain any stipulated wage rates or allowances.

[9] A review of the deficiencies that have been identified in respect to the application documentation, and the Agreement content issues, has established manifest impediment to any approval of the Agreement. Any prospect that the identified deficiencies in the Agreement might be rectified by way of Undertakings made in accordance with subsection 190 (5) of the Act, would result in substantial changes to the Agreement and would thereby be invalidated by subsection 190 (3) (b) of the Act.

[10] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act. Further, the Agreement would need to be substantially altered before it would pass the better off overall test. Therefore the approval sought pursuant to s.185 is refused. Accordingly the application is dismissed.

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