National Heavy Vehicle Regulator

[2019] FWC 8276

[2019] FWC 8276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement

National Heavy Vehicle Regulator
(AG2019/3826)

VICROADS EA8
[AE419706]

State and Territory government administration
COMMISSIONER MCKINNON	MELBOURNE, 5 DECEMBER 2019

Application to vary transferable instrument – terms incapable of meaningful operation – alignment of working arrangements – application granted from date of transfer of employment.

[1] The National Heavy Vehicle Regulator is the national agency responsible for administering uniform heavy vehicle regulation in Australia. It was established as part of a consensus-based reform to consolidate and harmonise State and Territory laws for the regulation of heavy vehicles.

[2] By agreement, some of the NHVR’s regulatory functions are currently being performed by employees of VicRoads, including compliance and enforcement. From 8 December 2019, these functions are to be insourced by the NHVR. Approximately 54 employees will transfer to the NHVR from that date in a transfer of business under the Fair Work Act 2009.

[3] The employees are covered by an enterprise agreement known as the VicRoads EA8. The Agreement is a transferable instrument that will cover NHVR as the new employer of the transferring employees. It currently covers VicRoads and its relevant employees as well as the Australian Manufacturing Workers’ Union, the Association of Professional Engineers, Scientists and Managers, Australia, the Australian Municipal, Administrative, Clerical and Services Union and the Australian Workers’ Union. The Community and Public Sector Union is not covered by the Agreement but has an interest in the transfer of business to the NHVR.

[4] In connection with the transfer of business, the NHVR seeks a new Annexure to the Agreement which will modify the operation of the Agreement in relation to the NHVR. The Annexure is intended to:

•  remove terms that are not, or will not be, capable of meaningful operation because of the transfer of business insofar as they would otherwise apply to the NHVR; and

•  enable the Agreement to operate in a way that is better aligned to working arrangements at the NHVR.

[5] The variations affect terms dealing with dispute resolution, consultation and disciplinary procedures in the Agreement. Amendments are also proposed to mirror terms in NHVR enterprise agreements relating to NHVR values and strategic priorities.

[6] Section 320 of the Act provides for the variation of transferable instruments in certain circumstances, including to remove terms that will not be capable of meaningful operation because of a transfer of business and to enable enterprise agreements to operate in a way that is better aligned to the new employer’s working arrangements.

[7] The NHVR has standing to apply for the variation. Mandatory considerations relevant to the decision to vary a transferable instrument are considered below.

[8] Views of the NHVR: A statutory declaration made by Cara Black, Manager of Legal Services for the NHVR, attests to the organisation’s support for the application. It has sought to limit the impact of the changes brought about by the proposed variation on employees and to ensure no material reduction in terms and conditions of employment. Only changes considered to be strictly necessary have been sought in the application, including removal of redundant references and giving effect to a single dispute resolution process across the business.

[9] Views of affected employees: Since March 2019, affected employees have been provided with information about the transfer of business and related proposal to vary the Agreement. A dedicated email inbox was created and shared with employees to ask questions or provide comments. A Frequently Asked Questions information sheet was published by the VicRoads Intranet for employees and documents including relevant enterprise agreements, “Concept of Operations”, “Staff Briefing Transition of Services” and “Victorian Service Transition Updates” were provided to employees directly. On 29 August 2019 an information sheet about this application was distributed. Meetings were held with relevant unions resulting in changes to the variations proposed by the NHVR. Consultation is continuing and there is no opposition to the application. All affected employees have been offered employment with the NHVR from 8 December 2019.

[10] Disadvantage arising from the variation: The variations are overwhelmingly machinery in nature. There is no evidence of disadvantage arising if the application is granted. A range of existing arrangements and entitlements for transferring employees have been preserved by the NHVR including continuity of service.

[11] The nominal expiry date: The Agreement has a nominal expiry date of 20 December 2019, some twelve days after the transfer of business is to take effect. The parties will soon have the opportunity of enterprise bargaining to replace the Agreement, including employees affected by the transfer of business. In the meantime, annual reviews and related benefits for transferring employees were completed in September 2019. This weighs marginally in favour of the application.

[12] Negative impact on productivity at the NHVR? The NHVR points to unnecessary and unproductive administrative difficulties associated with having to apply disparate dispute resolution systems and objectives inside and outside of Victoria if the Agreement is not varied. No alternative basis for concluding otherwise is before me.

[13] Significant economic disadvantage to NHVR without the variation? There is similarly no evidence of significant economic disadvantage to the NHVR that will accrue without the variation. The variation is not about cost but rather machinery terms that will assist in the efficient administration of the organisation.

[14] Degree of business synergy between workplace instruments: The Agreement and existing enterprise agreements that apply to the NHVR have a number of similarities but ultimately are different instruments. In light of the limited nature of the proposed variations together with the continuing operation of the Agreement until such time as it is terminated or replaced, it is a matter that carries little weight.

[15] Public interest: The NHVR submits that there is public interest in the consistency of terms between employees of the same organisation. The efficient administration of a national regulator is in the public interest and the application will promote that purpose.

[16] Each of the affected unions supports or does not oppose the proposed changes and is content for the application to be determined on the papers.

[17] On balance, I am satisfied that it is appropriate to vary the Agreement in the terms sought. The application is granted.

[18] The variation will operate on and from 8 December 2019 and an Order will issue separately to that effect.

COMMISSIONER

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