Hornibrook Bus Lines Pty Ltd

[2021] FWCA 4151

[2021] FWCA 4151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hornibrook Bus Lines Pty Ltd
(AG2021/5844)

HORNIBROOK BUS LINES ENTERPRISE AGREEMENT 2020

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 14 JULY 2021

Application for approval of the Hornibrook Bus Lines Enterprise Agreement 2020.

[1] Hornibrook Bus Lines Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Hornibrook Bus Lines Enterprise Agreement 2020 (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] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. 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.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] The Applicant made an error by misstating the correct date for the vote on the notification of the vote when it was originally issued. The error was rectified by reissuing the notification to confirm the correct date of the vote. 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. 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 this is a minor procedural or technical error 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 that minor error. In this regard, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error. I have also had regard to the fact that out of 99 employees covered by the Agreement, 86 employees cast a valid vote, and 53 employees voted to approve 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.

[5] I am satisfied, on the basis of 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.

[6] 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.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 21 July 2021. The nominal expiry date of the Agreement is 26 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE512253  PR731703>

Annexure A