Hanson Construction Materials Pty Ltd

[2022] FWCA 96

[2022] FWCA 96

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd

(AG2021/8792)

HANSON CONSTRUCTION MATERIALS PTY LTD EASTERN REGION - METRO TANKER DRIVERS ENTERPRISE AGREEMENT 2021

Road transport industry
COMMISSIONER P RYAN	SYDNEY, 13 JANUARY 2022

Application for approval of the Hanson Construction Materials Pty Ltd Eastern Region - Metro Tanker Drivers Enterprise Agreement 2021

1. Hanson Construction Materials Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd Eastern Region - Metro Tanker Drivers Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notice of employee representational rights (NERR)

1. The NERR did not include the proposed coverage of the Agreement and, in relation to a small number of employees, was issued on the 17^th day after the notification time. The Employer provided written and oral submissions that these matters constituted minor technical and procedural errors.

1. 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.

1. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

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.

Sections 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.

National Employment Standards

1. I observe that clauses 15.1(b), 15.4, 15.16, 16.4 and 28.2 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 8.2 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representatives

1. The Transport Workers Union (TWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the TWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 January 2022. The nominal expiry date of the Agreement is 30 November 2024.

COMMISSIONER

[1] [2019] FWCFB 318.

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