Department of Transport

[2022] FWCA 338

[2022] FWCA 338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Department of Transport
(AG2021/9035)

DEPARTMENT OF TRANSPORT – ROADS OCCUPATIONS ENTERPRISE AGREEMENT 2021

State and Territory government administration
DEPUTY PRESIDENT YOUNG	MELBOURNE, 7 FEBRUARY 2022

Application for approval of the Department of Transport - Roads Occupations Enterprise Agreement 2021

[1] Department of Transport (the Employer) has made an application for approval of an enterprise agreement known as the Department of Transport - Roads Occupations Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Employees were not provided with 7 clear days notice of the place and method of the vote as required by section 180(3) of the Act. The Employer provided submissions as to this error on 19 January 2022. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[6] I observe that clauses 36.7, 37.9(c) and 61.4 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings referred to above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 7 February 2022 and, in accordance with s 54, will operate from 14 February 2022. The nominal expiry date of the Agreement is 30 August 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 318

Annexure A