RACQ Operations Pty Ltd T/A RACQ

[2022] FWCA 2613

[2022] FWCA 2613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

RACQ Operations Pty Ltd T/A RACQ

(AG2022/2439)

RACQ Motoring (Vehicle Recovery Officers) Enterprise Agreement 2022-2025

Vehicle industry
DEPUTY PRESIDENT MOLTONI	BRISBANE, 2 AUGUST 2022

Application for approval of the RACQ Motoring (Vehicle Recovery Officers) Enterprise Agreement 2022 - 2025

1. An application has been made for approval of an enterprise agreement known as the RACQ Motoring (Vehicle Recovery Officers) Enterprise Agreement 2022-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by RACQ Operations Pty Ltd T/A RACQ (the Applicant). The Agreement is a single enterprise agreement.

1. Pursuant to s.188(2), I note that the Notice of employee representation rights contains the name of the Agreement without the relevant years, which are however included in the Agreement itself. I am satisfied that the Agreement has been genuinely agreed on the basis that the error is a minor technical error and that the employees covered by the Agreement were not likely to have been disadvantaged by the error given the years were included in the Agreement at the beginning of the access period and employees voted in favour of approving it in that form.

1. I note clause 9.3(c)(i) and 9.3(c)(iii) may be unenforceable as a deduction is contrary to s.324 and s.326 of the Act and as such where there is any inconsistency in the implementation of clauses 9.3(c)(i) and 9.3(c)(iii), the provisions of s.324 and s.326 of the Act will instead apply.

1. The Applicant has provided written 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

•  Clause 18.1 – Public Holidays

This clause of the Agreement provides for the substitution of a Public Holiday to an alternative day by the agreement of a majority of staff although the NES provides for such agreement only by individuals. However, noting clause 5.3 of the Agreement, I am satisfied that where an individual or individuals do not agree to the substitution of a Public Holiday with an alternative day, that or those individuals will not be bound by the majority view. The more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 13 August 2025.

DEPUTY PRESIDENT

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