Corowa Trading Co Pty Ltd T/A Francis Transport

[2023] FWCA 477

[2023] FWCA 477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Corowa Trading Co Pty Ltd T/A Francis Transport

(AG2022/5533)

Francis Transport Drivers Enterprise Agreement 2021 - 2025

Road transport industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 24 FEBRUARY 2023

Application for approval of the Francis Transport Drivers Enterprise Agreement 2021 - 2025

1. Francis Transport has applied for approval of an enterprise agreement known as the Francis Transport Drivers Enterprise Agreement 2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Agreement lodged was missing rates of pay for a number of local driver classifications. On  27 January 2023, the Employer filed an amended Schedule 3 containing rates of pay for all local driver classifications across grades 1-10. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.

1. The Notice of Employee Representational Rights (NERR) was issued to employees over a 42-day period, inconsistent with s.173(3) of the Act. The Employer submits this was due to drivers travelling long distances which created difficulties in communication. Employees were also not provided with details of the vote at the start of the access period  as required by s.180(3) of the Act. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departures from the requirements of ss.173(3) and 180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Employer has 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.

1. 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. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 28.14 – Personal/carer’s leave and compassionate leave; and

·           Clause 30 – Abandonment of Employment.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 March 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

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Annexure A