Grace Removals (Australia) Pty Ltd

[2024] FWCA 1890

[2024] FWCA 1890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Grace Removals (Australia) Pty Ltd

(AG2024/1142)

GRACE REMOVALS ENTERPRISE AGREEMENT, EASTERN REGIONAL 2023-2027

Road transport industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 23 MAY 2024

Application for approval of the Grace Removals Enterprise Agreement, Eastern Regional 2023-2027

Introduction

1. Grace Removals (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Grace Removals Enterprise Agreement, Eastern Regional 2023-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 30 May 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 26 March 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Regulation 2.06 Requirements

1. The signature page of the Agreement 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 allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notification of time, place and method of vote

1. The last date on which notification of the time, place and method of vote was provided to employees was 21 March 2024. Voting for the Agreement commenced on 26 March 2024. This was only 4 clear days prior to the commencement of voting, rather than 7 clear days as required by s.180(3) of the Act. The Employer provided submissions that employees were not disadvantaged by this minor procedural error.

1. In the circumstances of this matter, which include a high voter turnout and high approval rate, I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards precedence term

1. Clause 8.11 of the Agreement provides that in the case of termination, where an employee fails to give the required notice or fails to work out the required notice period the Company may deduct from monies owing to the employee upon termination, an amount that is no more than one week’s wages for the employee. This clause does not appear to limit the source of the monies which may be deducted. Accordingly, the effect of the clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. I note that in accordance with the NES precedence term in Clause 4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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