Hurd Haulage Pty Ltd

[2023] FWCA 1798

[2023] FWCA 1798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hurd Haulage Pty Ltd

(AG2023/1493)

HURD HAULAGE PTY LTD NORTHERN NSW CONCRETE & TRANSPORT OPERATIONS ENTERPRISE AGREEMENT 2022

Cement and concrete products
COMMISSIONER MATHESON	SYDNEY, 20 JUNE 2023

Application for approval of the Hurd Haulage Pty Ltd Northern NSW Concrete & Transport Operations Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Hurd Haulage Pty Ltd Northern NSW Concrete and Transport Operations Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

Applicant and employer covered by the Agreement

1. When the application was initially made, the legal name of the applicant was stated as ‘Adbri Ltd’. The trading name was stated as ‘Hurd Haulage Pty Ltd (trading as Hy-Tec Industries Pty Ltd)’.

1. Clause 1.1 of the Agreement provides that:

“Parties bound to this agreement are: The Company, Hurd Haulage Pty Ltd t/a Hy-Tec Industries NSW…”

1. The title of the Agreement refers to ‘Hurd Haulage Pty Ltd’.

1. Clause 1.2 of the Agreement provides that:

“We, Us, Our, Employer and Company means or refers to Adbri, Hurd Haulage Pty Ltd t/a Hy-Tec Industries Pty Ltd NSW, ABN 90 070 100 702”.

1. The Commission asked the applicant to clarify which employer or employers are intended to be covered by the Agreement. The Applicant responded stating that only one employer is covered by the Agreement and that employer is Hurd Haulage Pty Ltd. The Applicant also clarified that the only employees involved in the making of the Agreement were those employed by that entity.

1. A conference was held on 5 June 2023 following receipt of the Applicant’s response. Mr Corey Webb appeared for the applicant and Mr Ray Fitzpatrick appeared for the Transport Workers’ Union of Australia (TWU), a bargaining representative for the Agreement. During the conference the Applicant again clarified that only employees of Hurd Haulage Pty Ltd were involved in the processes for making the agreement subject of the application and that only Hurd Haulage Pty Ltd (ABN 61 001 738 709) was intended to be covered by the Agreement. The Applicant also clarified that employees of the entities Adbri Ltd and Hy-Tec Industries Pty Ltd are not intended to be covered by the agreement the subject of the application and that there was an error in clause 1.2 of the agreement to the extent that entities other than Hurd Haulage Pty Ltd are referred to. This was not disputed by the TWU.

1. Having heard from the parties at the conference, I invited the Applicant to file amended Forms F16 and 17 to address the error in the stated name of the applicant and invited the TWU to file a Form F18. The parties subsequently did so. Having heard from the parties and despite the poor drafting of clauses 1.1 and 1.2 of the Agreement I am satisfied that the Agreement is intended to cover one employer being Hurd Haulage Pty Ltd and that the Agreement is a single enterprise agreement.

Amended application

1. An amended application was made identifying Hurd Haulage Pty Ltd (Applicant) as the applicant. Due to the error that had occurred in relation to the name of the employer covered by the Agreement as stated in the original application, this application was not made within 14 days after the agreement was made. However, in all the circumstances I consider it fair to extend the period for the making of the application pursuant to s.185(3)(b) of the Act to the date on which it was actually made. I grant the extension.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The notification time for the Agreement is a date prior to 6 June 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

1. Further, the Agreement is made prior to 6 June 2023 and the effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.4 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 Applicant, who is also the employer covered by the Agreement, has 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 27 June 2023. The nominal expiry date of the Agreement is 1 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE520408  PR763365>

Annexure A