Rock Logistics Pty Ltd T/A Rock Logistics
[2023] FWCA 2200
•17 JULY 2023
| [2023] FWCA 2200 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Rock Logistics Pty Ltd T/A Rock Logistics
(AG2023/1963)
ROCK LOGISTICS NATIONAL ENTERPRISE AGREEMENT 2022-2027
| Road transport industry | |
| COMMISSIONER HUNT | BRISBANE, 17 JULY 2023 |
Application for approval of the Rock Logistics National Enterprise Agreement 2022-2027
Rock Logistics Pty Ltd T/A Rock Logistics (the Employer) has applied for approval of an enterprise agreement known as the Rock Logistics National Enterprise Agreement 2022-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply to where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 1 November 2022.
Under the transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the Agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 26 March 2023.
The Fair Work Commission (the Commission) identified that the answer to question 20 within the Form F17 is that a one-page summary sheet with the voting slip was issued to employees on 14 March 2023. However, I raised that it was unclear from the material provided how the employees were notified of the time, place and method of vote. Further, as question 25.1 indicates that the vote commenced on 15 March 2023, this appeared to be less than 7 clear days before the vote, inconsistent with s.180(2) of the Act.
The Employer advised that the Agreement was on display at all site noticeboards and copies were made available for employees from 14 March 2023. A one-page summary sheet, with the voting slip was issued to all employees on the same day. Sealed ballot boxes were positioned next to staff noticeboards for votes to be submitted by silent ballot ending 27 March 2023.
Section 188 of the Act, as it existed prior to 6 June 2023, provided:
“(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representation rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) The agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) The employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of section 173 and 174.”
As the notification time for the Agreement was before 6 June 2023, I am satisfied that in 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 & Others,[1] the fact that the employees did not have a period of 7 clear days as an access period, but did have a very lengthy period of time in which to cast a vote, this constitutes a minor procedural or technical error for the purpose of s.188(2) of the Act, as it was just before 6 June 2023. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
In its Form F16, the Employer noted that the application was not lodged within 14 calendar days after the agreement was made. The Employer advised that the lodging process was misunderstood, explaining the late lodgement. Pursuant to s.185(3)(b), I consider it fair in all the circumstances to extend the time for making the application to the date it was actually made.
The Commission has also raised other certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.
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.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.
I indicated to the Employer of my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and is taken to be a term of it.
I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 July 2023. The nominal expiry date of the Agreement is 17 March 2027.
COMMISSIONER
Annexure A – Undertakings
[1] [2019] FWCFB 318.
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