Prixcar Transport Services Pty Ltd

[2019] FWCA 5911

[2019] FWCA 5911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prixcar Transport Services Pty Ltd
(AG2019/2497)

PRIXCAR TRANSPORT SERVICES PTY LTD AND TRANSPORT WORKERS UNION OF AUSTRALIA FAIR WORK AGREEMENT 2019-2023

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 28 AUGUST 2019

Application for approval of the Prixcar Transport Services Pty Ltd and Transport Workers Union of Australia Fair Work Agreement 2019-2023.

[1] Prixcar Transport Services Pty Ltd has applied for approval of a single enterprise agreement known as the Prixcar Transport Services Pty Ltd and Transport Workers Union of Australia Fair Work Agreement 2019-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, various concerns have been raised by and with the Commission in relation to whether: the pre-approval requirements were met; the Agreement contravenes s.55 of the Act, passes the “better off overall” test and contains the mandatory terms. Further information was provided by the Applicant in relation to the concerns.

[3] Regarding the pre-approval steps, the coverage of the enterprise agreement referred to in the Notice of Employee Representational Rights (NERR) is not described in the same way as the coverage of the Agreement as made. The Applicant provided further evidence and submissions in this respect. The bargaining representative did not oppose.

[4] Taking into account all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Noting clauses 6(b) and 51(4) of the Agreement, the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] Written undertakings were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is also taken to be a term of the Agreement.

[9] 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) I note that the Agreement covers the organisation.

[10] The Agreement was approved on 28 August 2019 and, in accordance with s.54, will operate from 4 September 2019. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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