Neway Holdings Pty Ltd T/A Neway Transport

[2022] FWCA 1504

[2022] FWCA 1504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Neway Holdings Pty Ltd T/A Neway Transport

(AG2022/937)

Neway Transport Enterprise Agreement NSW 2022

Road transport industry
COMMISSIONER MIRABELLA	MELBOURNE, 4 MAY 2022

Application for approval of the Neway Transport Enterprise Agreement NSW 2022.

1. Neway Holdings Pty Ltd T/A Neway Transport (the Employer) has made an application for approval of an enterprise agreement known as the Neway Transport Enterprise Agreement NSW 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employer did not provide the notice of employee representational rights (NERR) to employees in the prescribed form. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. The Form F17 Declaration lodged did not specify the steps taken by the Employer to distribute the NERR. On 6 April 2022, the Employer filed an amended version of the Form F17 Declaration correcting the error identified. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

1. The Agreement lodged contained a typographical error. On 6 April 2022, the Employer filed an amended version of the Agreement correcting the error identified. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 25(a) – Personal/carer’s leave

• Clause 25(b) – Compassionate leave

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 4 May 2022 and, in accordance with s.54, will operate from 11 May 2022. The nominal expiry date of the Agreement is 3 February 2025.

COMMISSIONER

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Annexure A