Presto Transport Pty Ltd

[2021] FWCA 307

[2021] FWCA 307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Presto Transport Pty Ltd
(AG2020/3891)

PRESTO TRANSPORT PTY LTD ENTERPRISE AGREEMENT 2020

Road transport industry
COMMISSIONER CIRKOVIC	MELBOURNE, 21 JANUARY 2021

Application for approval of the Presto Transport Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Presto Transport Pty Ltd Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Presto Transport Pty Ltd. The Agreement is a single enterprise agreement.

[2] The employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union, 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) I note that the Agreement covers the organisation.

[5] I observe that Clause 13.4 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.1 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] I note that the Notice of Employee Representational Rights provided to employees stated that the Agreement covered truck drivers as listed in the Road, Transport and Distribution Award 2020 (Award) This was an error; ‘truck driver’ is a not a classification in the Award. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration 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 within the meaning of s.188(2) of the Act.

[7] The Agreement was approved on 21 January 2021 and, in accordance with s.54, will operate from 28 January 2021. The nominal expiry date of the Agreement is 28 January 2024.

COMMISSIONER

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ANNEXURE A