Complete Transport Pty Ltd T/A Complete Haulage

[2021] FWCA 6911

[2021] FWCA 6911

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Complete Transport Pty Ltd T/A Complete Haulage

(AG2021/8389)

Complete haulage enterprise agreement 2021

Road transport industry
Commissioner Matheson	SYDNEY, 30 NOVEMBER 2021

Application for approval of the Complete Haulage Enterprise Agreement 2021.

1. An application has been made for approval of an enterprise agreement known as the Complete Haulage Enterprise Agreement 2021 (Agreement). The application was made by Complete Transport Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that 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 waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

1. The name of the employer on the Notice of Employee Representational Rights (NERR) was incorrectly stated as ‘Complete Haulage Pty Ltd’ rather than the correct name of the employer being ‘Complete Transport Pty Ltd’. The Applicant submitted that this was a minor technical error within the meaning of s.188(2) of the Act, on the basis that the NERR may not comply with the content requirements for the NERR as required by s.174(1A) of the Act, and that employees were unlikely to be disadvantaged as:

·   employees would reasonably have understood that being personally provided with a hard copy of the NERR meant it was relevant to them and they were within the scope of the proposed Agreement;

·   there is no entity of the company name detailed on the NERR and no complex group of companies around the work undertaken which could cause confusion;

·   employees are familiar with the Complete Haulage business name, so would reasonably have made the connection between the employer name on the NERR and themselves;

·   employees attended meetings and updates regarding the proposed Agreement in regular Monday toolboxes throughout the enterprise bargaining process, so would have been reasonably aware they were within the scope of the Agreement;

·   employees were provided with a draft copy of the Agreement which accurately detailed the company and trading name which employed them;

·   the Agreement is effectively a “rollover agreement” with updated provisions in line with changes to the National Employment Standards and underpinning award; and

·   a high proportion of employees voted on the Agreement, and every employee who did vote voted yes.

1. The Applicant also submitted that the Agreement has been genuinely agreed.

1. In all the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others[1], I am satisfied that:

(a)the error regarding the name of the employer in the NERR constitutes a minor procedural or technical error for the purposes of s.188(2); and

(b)the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

1. On the basis of the materials before the Commission, I am also satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

1. The Applicant, who is also the employer covered by the Agreement, has provided a written undertaking. A copy of the undertaking is attached at Annexure A of this decision (Undertaking). I am satisfied that the effect of accepting the Undertaking is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertaking.

1. Subject to the Undertaking, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 December 2021. The nominal expiry date of the Agreement is four years from the date of this approval.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE514091  PR736306>