RAC Motoring Pty Ltd T/A RAC Motoring

[2021] FWCA 2164

[2021] FWCA 2164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RAC Motoring Pty Ltd T/A RAC Motoring
(AG2021/4600)

RAC ROADSIDE SERVICE PATROLS ENTERPRISE AGREEMENT 2021

Vehicle industry
COMMISSIONER PLATT	ADELAIDE, 21 APRIL 2021

Application for approval of the RAC Roadside Service Patrols Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the RAC Roadside Service Patrols Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by RAC Motoring Pty Ltd T/A RAC Motoring (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 April 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 20 April 2021. The undertaking deals with the following topic:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[6] There are three NES issues that require comment.

[7] Clause 27.1(g) of the Agreement requires an employee to notify their Manager no later than one hour before their normal start time if they wish to take personal or carer’s leave. This places a greater notification obligation than is required by the NES at s.107(2)(a) of the Act. Clause 4(b) of the Agreement is a NES precedence clause and provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, the notification obligations on an employee who takes carer’s leave will be consistent with s.107(2)(a) of the Act, in that notice must be given as soon as practicable (which may be a time after the leave has started).

[8] In addition, clauses 25.5(c) and 25.6(c) of the Agreement state that annual leave loading will not apply to pro-rata leave on termination, which is contrary to s.90(2) of the Act. As a result of the NES precedence clause, annual leave loading will apply to pro-rata leave on termination.

[9] Finally, clause 30.2 of the Agreement states that an employee who has been made redundant and has completed one year of continuous service will be entitled to three weeks in redundancy payments. This is inconsistent with s.119(2) of the Act. As a result of the NES precedence clause, employees who are entitled to redundancy payments under the NES who have had at least one year but less than two years of continuous service will receive four weeks of redundancy payment.

[10] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[11] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act I note that the Agreement covers this organisation.

[12] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 July 2024.

COMMISSIONER

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