National Heavy Vehicle Regulator

[2025] FWCA 624

[2025] FWCA 624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

National Heavy Vehicle Regulator

(AG2024/5196)

NHVR (ADMINISTRATIVE AND PROFESSIONAL) ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT ROBERTS	SYDNEY, 18 FEBRUARY 2025

Application for approval of the NHVR (Administrative and Professional) Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the NHVR (Administrative and Professional) Enterprise Agreement 2024-2027 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by National Heavy Vehicle Regulator (the Applicant). The Agreement is a single enterprise agreement.

1. Following the filing of the application and supporting materials I wrote to the Applicant seeking further submissions on a number of issues raised by the application. The Applicant provided submissions in response to those issues. I have also received declarations from employee bargaining representatives which include submissions relating to the application and various reasons as to why the Agreement should not be approved. The Applicant has responded to the material in those declarations.

1. The submissions set out in the declaration of the employee bargaining representatives who oppose approval traverse a range of issues. They include complaints about Applicant’s role in communications with bargaining representatives and employees during bargaining, allegations as to breaches of the good faith bargaining provisions, views as to the fairness or equity of certain terms now included in the Agreement, requests that certain terms of the Agreement be clarified and submissions comparing the terms of the Agreement with the terms of a predecessor agreement, the NHVR Administration and Professionals Enterprise Agreement 2020-2023 (NHVR 2020 Agreement).

1. The Applicant submitted that many of the matters raised by the employee bargaining representatives were irrelevant because they did not engage directly with the agreement approval requirements set out in ss.186, 187 and 188 of the Act. I agree. The Commission’s task is to assess the material provided to ensure that there has been compliance with the mandatory approval requirements set out in the Act rather than engage in a wide-ranging examination of the history of the negotiation process where such examination is unrelated to those the mandatory requirements. I have considered the submissions of the parties in their totality. To the extent that the employee bargaining representatives’ declarations go to the requirements of the Act, for example because they raise issues relating to whether the Agreement has been genuinely agreed to by the employees to be covered by the Agreement or because they deal with the issue of whether the better off overall test has been satisfied, I have taken those submissions into account.

1. Various issues were raised by the employee bargaining representatives to the effect that the employer had not taken all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to employees in accordance with the requirements of s.180(5) of the Act. Having regard to the material filed, I do not think this is the case. The presentation pack of materials and the detailed explanation document provide an explanation as the proposed terms relating to standard hours and rostered day off arrangements and the impact on accrued time off, amongst other terms. The change to travel allowance arrangements was also clearly explained in the materials. I am also satisfied that the explanatory material made very clear the terms upon which the additional payment referred to in the bargaining representatives’ declarations would be paid and do not think that the earlier representation complained of would have misled the employees given the reference to the payment being made ‘upon a ‘yes’ vote and Fair Work approval’ (italics added) and the clear written explanatory material that was made available.

1. According to the material provided, the explanation process provided by the Applicant included an in-person explanation session and a Teams virtual explanation session. A recording of an explanation session in respect of each of the three cohorts that the explanation was tailored to meet was also uploaded onto the intranet and made available to employees. These are reasonable steps to explain the terms of the Agreement and the effect of the terms.

1. I note that an employee bargaining representative provided a copy of an explanatory document that makes reference to ‘several changes to benefit NHVR employees’ including Christmas closedown leave. The bargaining representative said that this was presented to employees as a benefit when those under the NHVR 2020 Agreement already received this entitlement. The Applicant submitted that the explanation in relation to the Christmas close-down period was different for different cohorts of employees and that it was specifically presented as a new entitlement for the cohorts that had not previously received the benefit. The explanatory materials support that submission. A detailed explanation was provided to employees about the effect of this clause. That explanation is contained in Attachment I to the Applicant’s declaration in support.

1. I am satisfied that the Applicant took all reasonable steps to explain the terms of the agreement and their effect.  

1. I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met.

1. I note that Clause 1.9 of the Agreement provides that this Agreement is to be read in conjunction with the National Employment Standards (NES). In the case of any inconsistency between this Agreement and the NES, where the NES offers greater benefits, the NES will prevail to the extent of the inconsistency.

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Community and Public Sector Union (CPSU) lodged Form F18 statutory declarations giving 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 the Agreement covers the ASU and CPSU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 25 January 2028.

1. An application has also been made by the Applicant to vary the terms of the Agreement under s.218A of the Act to correct an obvious error, defect or irregularity in the Agreement. The application seeks to amend Clause 1.1 of Schedule 1 of the Agreement by deleting the reference to “Error! Reference source not found.” and replacing those words with the numerals “1.2”. The Applicant submitted that reference to “1.2” was inadvertently omitted and the existing text included in error as a result of a hyperlink reference operating incorrectly.

1. Clause 1.2 sets out the base salaries and base rates of pay for grandfathered roles covered by the Agreement. It appears immediately below clause 1.1 where the text sought to be removed appears. It is readily apparent that when sub-clauses1.1 and 1.2 of Schedule 1 are read together, the effect is that clause 1.1 must be read as being subject to clause 1.2. The words "of this Schedule" in clause 1.1 make clear that clause 1.1 is referring to another clause within Schedule 1. Schedule 1 only comprises clause 1.1 and 1.2 and accordingly there are no other clauses aside from clause 1.2 which could be referred to. Further, sub-clause 1.2 makes clear that the rates in that subclause apply in lieu of those in sub-clause 1.1 where a person is employed in one of the roles specified.

1. The views of the bargaining representatives were sought in respect of the proposed variation application. The variation was not opposed. I am satisfied that the Agreement contains an obvious error within the meaning of s.218A and that I should exercise my discretion in favour of varying the Agreement to correct that error.

1. I consider that the variation should operate from the date of the commencement of operation of the Agreement. In accordance with s.218A(3) the variation will operate 7 days after the Agreement is approved. An order giving effect to this decision will be published separately.

DEPUTY PRESIDENT

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