Hillsbus Co Pty Ltd T/A Hillsbus Metro Connect

[2022] FWCA 2790

[2022] FWCA 2790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hillsbus Co Pty Ltd T/A Hillsbus Metro Connect

(AG2022/2406)

CDC and TWU Drivers Agreement 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER MATHESON	SYDNEY, 16 AUGUST 2022

Application for approval of the CDC and TWU Drivers Agreement 2022.

1. An application has been made for approval of an enterprise agreement known as the CDC and TWU Drivers Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement covering five single interest employers being:

·  Hillsbus Co Pty Ltd (ABN 62 116 171 469);

·  CDC Travel Pty Limited (ABN 49 118 478 318);

·  Blue Mountains Transit Pty Ltd (ABN 59 600 387 479);

·  Hunter Valley Buses Pty Ltd (ABN 68 116 171 432); and

·  QCity Transit Pty Ltd (ABN 50 001 260 242),

(Employers).

1. The Form F16 originally identified ComfortDelGro Corporation Australia Pty Ltd as the applicant. While the Employers covered by the Agreement are wholly owned subsidiaries of this entity with the same directors and management team and function as a single enterprise, ComfortDelGro Corporation Australia Pty Ltd is not in itself an employer covered by the Agreement or a bargaining representative for the Agreement. An amended Form F16 was subsequently filed, identifying the correct applicant as being Hillsbus Co Pty Ltd T/A Hillsbus Metro Connect (Applicant). This entity was a bargaining representative for the Agreement and is an employer covered by the Agreement within the meaning of s.176(1)(a) of the Act. Pursuant to s.586(a) of the Act, I allow the amendment to the Form F16.

1. The Form F17 originally omitted the notification date for the Agreement. An amended version was subsequently filed. Pursuant to s.586(a) of the Act, I allow the amendment to the Form F17.

1. Clause 5 of the Agreement provides that ‘Agreement’ means the ‘CDC and TWU Drivers Agreement 2018’. Clause 1 of the Agreement also appears to define the Agreement as the ‘CDC and TWU Drivers Agreement 2022’. The Applicant confirmed that that the definition in clause 5 of the Agreement is a typographical error and that the reference to ‘2018’ should be a reference to ‘2022’. It is apparent to me that this is indeed an error.

1. The Applicant sought that I make a correction to the Agreement to address this error. I have considered this however, in Advantaged Care Pty Ltd v Health Services Union,[1] a Full Bench of the Commission considered the power in s.602 of the Act for the Commission to correct an error in relation to its decisions, finding it could not be exercised to correct an error in an enterprise agreement. While the decision dealt with s.602 of the Act and not s.586, having considered the principles in the Full Bench decision, I have decided not to correct the errors in the Agreement pursuant to s.586 of the Act in the manner sought by the Applicant. The Full Bench in Advantaged Care Pty Ltd v Health Services Union did however state:

“[47] Further, as the Deputy President observes, in circumstances of obvious error, defect or irregularity, the FW Act provides other means for rectification. Any ‘obvious error, defect or irregularity’ may be addressed by a variation of the agreement approved by a majority of the affected employees, in accordance with s.210 or by the Commission varying the agreement to remove an ambiguity or uncertainty, pursuant to s.217.”

1. A party is at liberty to apply for a variation pursuant to ss.210 or 217 of the Act, however I note that, for the purposes of this application, I am able to discern the intention of the clause, have considered where the term “Agreement” is referenced in the Agreement and am satisfied that the error does not impact my assessment of the Agreement.

1. The Agreement contained a signature page that did not comply with regulation 2.06A(2) of the Fair Work Regulations 2009 (Cth) in all respects. The Applicant subsequently filed an amended signature page. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

1. There was an anomaly in one of the names of the employers in the Notice of Employee Representational Rights (NERR) in that it referred to ‘Charterplus’ instead of ‘CDC Travel’. This was brought to the attention of the Applicant who submitted that ‘Charterplus’ is the trading name of CDC Travel Pty Ltd and that this is a minor procedural or technical error within the meaning of s.188(2)(a) of the Act, made in relation to compliance with s.174 of the Act, and that it is unlikely that employees were disadvantaged by the error. In particular, the Applicant submitted:

·  employees in receipt of the NERR are aware of the trading name and, as such, were unlikely to have been disadvantaged by the reference to it rather than the legal name of the employer;

· notwithstanding this error, CDC Travel Pty Ltd regularly communicated with its employees about the bargaining process following the issue of the NERR, and employee bargaining representatives and union representatives participated in the negotiating process. In circumstances where the objective and underlying purpose of the NERR is to notify employees of their right to be represented by a bargaining representative in relation to the Agreement, the participation of both employee and union bargaining representatives demonstrates that employees were not likely disadvantaged within the meaning of s.188(2)(b) of the Act as a result of this technical error, such that it is can be said that genuine agreement would not have been affected; and

· an agreement in circumstances where the NERR referenced the trading name rather than the legal name of the employer was otherwise approved in similar circumstances, with the Full Bench determining that this was a minor technical error in relation to the requirements of s 174 of the Act.[2]

1. Having considered the submissions of the Applicant, I am satisfied that the error made is a minor technical error that, in the circumstances of this matter, would not prevent genuine agreement and that the employees covered by the agreement were not likely to have been disadvantaged by the error.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4(e) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employers have provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2022. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Annexure A

[1] [2021] FWCFB 453.

[2] Huntsman Chemical Company Pty Limited (t/as RMAX Cellular Plastics) [2019] FWCFB 318 at [117].

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