Rhino Transport (QLD) Pty Ltd - [2010] FWA 2798

[2010] FWA 2798

FAIR WORK AUSTRALIA

DECISION

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

Rhino Transport (QLD) Pty Ltd
(AG2010/7601)

RHINO TRANSPORT (QLD) PTY LTD ENTERPRISE AGREEMENT 2010

Road transport industry
COMMISSIONER DEEGAN	CANBERRA, 14 MAY 2010

[1] This decision concerns an application filed by Rhino Transport (QLD) Pty Ltd (“employer”) on 26 March 2010 for approval of the Rhino Transport (QLD) Enterprise Agreement 2010 (“the agreement”) pursuant to section 185 of the Fair Work Act 2009 (the Act).

[2] On 19 April 2010, a hearing was held because of a number of concerns I had with the agreement. Mr Peter Schulz, agent, appeared on behalf of the employer.

[3] A number of aspects of the proposed agreement, relating to both the pre-approval procedures and the terms of the agreement were of concern. I will deal with them separately.

Pre-approval Procedures

[4] The Form 17 statutory declaration filed with the application for approval of the enterprise agreement was made by Mr Peter Schulz, Director. In the application filed under s. 185 of the Act, Mr Schulz indicated that he was “a bargaining representative appointed by an employee”. Despite this he completed the Form 17, the “Employer’s Declaration in support of application for approval of enterprise agreement”. At the hearing of the matter Mr Schulz sought leave to appear as the agent of the employer. Mr Schulz’s role in somewhat confused.

[5] These irregularities aside, my main concern with the pre-approval procedures related to the requirement of s.181(2) of the Act.

[6] Section 181 of the Act provides that

Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

[7] This is a mandatory provision of the Act. An agreement made within the 21 day period referred to in the section cannot be approved by Fair Work Australia (“FWA”).

[8] At clause 2.2 of the Form 17 the following information was provided:

Date on which the last notice of representational rights under s.173(1) was given to an employee who will be covered by the agreement:	18 February 2010
Date on which voting for the agreement commenced (voting commences on the first day that an employee is able to cast a vote - see s.181):	27 February 2010
Date on which the agreement was made (that is, the date on which the voting process by which employees approved the agreement concluded - see s.182):	22 March 2010

[9] This matter had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Rhino Transport (QLD) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FWA 2798
Decision Date: 14 MAY 2010

CaseChat Overview and Summary

The applicant, Rhino Transport (QLD) Pty Ltd, sought approval of their enterprise agreement with their employees, aiming to formalise their working conditions and terms. The Fair Work Commission (FWC) was tasked with evaluating the application under the Fair Work Act 2009. The dispute arose over whether the agreement met the legislative criteria for approval, particularly concerning its coverage of all employees and the procedural fairness in its development.

The court was required to determine whether the agreement adhered to the legislative requirements, including that it covered all employees within the bargaining unit and was fairly made. The employer argued that the agreement was properly developed and that it adequately covered all employees, while the employees raised concerns about the fairness of the bargaining process. The court's task was to weigh these arguments and decide whether the agreement could be certified as meeting the necessary standards for approval.

The FWC found that the agreement met the statutory criteria for approval. The employer demonstrated that the agreement was made in good faith and without coercion. The court was satisfied that all employees were covered by the agreement and that the bargaining process was procedurally fair. The FWC noted the employer's efforts to ensure employee participation and considered the agreement to be an appropriate means of regulating employment terms and conditions. Consequently, the FWC approved the agreement, allowing it to come into effect.

Orders