Epping Transport Pty Ltd

[2023] FWCA 591

[2023] FWCA 591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Epping Transport Pty Ltd

(AG2023/197)

Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025

Road transport industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 23 FEBRUARY 2023

Application for approval of the Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025

1. Epping Transport Pty Ltd has applied for approval of an enterprise agreement known as the Epping Transport Pty. Ltd. Concrete Agitator Delivery Drivers Agreement 2022-2025 (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 version of the Agreement lodged contained a watermark, included an incorrect reference, and was silent on the relevant percentage trainees would receive. On 22 February 2023, the Employer filed an amended version of the Agreement correcting these matters and specifying that trainees would receive 100% of the relevant classification. Pursuant to s.586 of the Act, I am satisfied that the corrections should be made, and that it is appropriate to do so.

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. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

·   Clause 9.5 – Minimum Probationary Period;

·   Clause 11.4 – Personal Leave;

·   Clause 23.3 – Severance pay;

·   Clause 24.1.5 – Notice of termination by the Company;

·   Clause 24.2.2 – Notice of termination by an Employee; and

·   Clause 35.5 – Public Holidays.

However, noting clause 7 of the Agreement, 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 2 March 2023. The nominal expiry date of the Agreement is 27 October 2025.

DEPUTY PRESIDENT

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Annexure A