NT VIC Pty Ltd T/A Neway Transport

[2022] FWCA 2219

[2022] FWCA 2219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NT VIC Pty Ltd T/A Neway Transport

(AG2022/1894)

Neway Transport Victoria Enterprise Agreement 2022

Road transport industry
COMMISSIONER MIRABELLA	MELBOURNE, 5 JULY 2022

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

1. NT VIC Pty Ltd T/A Neway Transport (the Employer) has made an application for approval of an enterprise agreement known as the Neway Transport Victoria Enterprise Agreement 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 take all reasonable steps to ensure that during the access period for the Agreement, employees were given a copy of the incorporated modern award or take all reasonable steps to ensure that employees had access to a copy of the incorporated modern award throughout the access period for the Agreement. 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.180(2). 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. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 23(a) – Unpaid carer’s leave

·   Clause 23(a) – Personal/carer’s leave

·   Clause 23(b) – Compassionate leave

·   Clause 13(d) – Casual conversion

1. 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 5 July 2022 and, in accordance with s.54, will operate from 12 July 2022. The nominal expiry date of the Agreement is 9 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE516537  PR743303>

Annexure A