Hills Tankers Pty Limited

[2021] FWCA 6455

[2021] FWCA 6455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hills Tankers Pty Limited
(AG2021/7449)

HILLS TANKERS BULK LIQUIDS SOUTHEAST QLD ENTERPRISE AGREEMENT 2021

Road transport industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 OCTOBER 2021

Application for approval of the Hills Tankers Bulk Liquids Southeast QLD Enterprise Agreement 2021

[1] Hills Tankers Pty Limited (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Hills Tankers Bulk Liquids Southeast QLD Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Form F17 Employer’s statutory declaration states that the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of the notification time for the Agreement. Further, the Applicant made an error by commencing the vote on the seventh day of the access period for the Agreement. As a result of this error, the vote for the Agreement occurred before the conclusion of the access period required by s.180(3) of the Act.

[3] Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that these errors are minor procedural or technical errors and that pursuant to s. 188(2)(a) of the Act I can be satisfied that the Agreement would have been genuinely agreed but for those minor errors. In this regard, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the errors. The Agreement replaces the Transport Workers’ Union and Hill’s Tankers Bulk Liquids Enterprise QLD Agreement 2016 and is similar terms to that Agreement. A majority of employees approved the Agreement. The Transport Workers Union of Australia, a bargaining representative of employees, also supports the approval of the Agreement. Accordingly, there is no basis for finding that the error had any bearing on the outcome of the ballot to approve the Agreement.

[4] The Agreement does not contain a consultation term that is consistent with the requirements in s.205 of the Act. 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.

[5] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 4 November 2021. The nominal expiry date of the Agreement is 7 July 2024.

DEPUTY PRESIDENT

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