The Haylock Family Trust trading as Emerald Carrying Company
[2025] FWCA 3008
•5 SEPTEMBER 2025
| [2025] FWCA 3008 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
The Haylock Family Trust trading as Emerald Carrying Company
(AG2025/1788)
EMERALD CARRYING COMPANY (SOUTH QLD) BULK LIQUIDS ENTERPRISE AGREEMENT 2025
| Road transport industry | |
| DEPUTY PRESIDENT BUTLER | BRISBANE, 5 SEPTEMBER 2025 |
Application for approval of the Emerald Carrying Company (South QLD) Bulk Liquids Enterprise Agreement 2025
The Haylock Family Trust trading as Emerald Carrying Company (“the Employer”) has applied for approval of an enterprise agreement known as the Emerald Carrying Company (South QLD) Bulk Liquids Enterprise Agreement 2025 (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.
This Application
A party’s application for the Commission’s approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least 1 representative of the employees covered by the agreement, and it includes each signatory’s full name and address, and an explanation of their authority to sign.[2] The explanation of the employee representative’s authority to sign is arguably insufficient. The Employer confirms the employee concerned is a driver. In an abundance of caution, and to the extent necessary to do so: I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signatory’s explanation of their authority to sign the Agreement.
Pre-approval requirements
On 1 May 2025, employees were emailed a memorandum which provided the details of the vote, which was to be conducted electronically. However, the electronic voting process was replaced with a manual voting process. It appears only two days’ notice of the commencement of the (manual) ballot was given (i.e. 20 May, for a ballot commencing 22 May). The ballot appears to have run for more than a week, until 30 May. This is not compliant with paragraph [16] of the Statement of Principles on Genuine Agreement (“the Principles”). However, noting that 41 out of 47 employees voted, I formed the preliminary view that the employees genuinely agreed regardless. I invited the bargaining representatives to be heard if they took a different view. No bargaining representative availed themselves of that opportunity. Accordingly, I consider the Agreement to be capable of approval notwithstanding this non-compliance with the letter of the Principles.
Terms of the Agreement
The Agreement incorporates the Award delegates’ rights term by reference and does not contain a delegates’ rights term that meets the requirements of section 205A of the Fair Work Act. Pursuant to that section, clause 29A of the Road Transport and Distribution Award 2020 is taken to be a term of the Agreement.
The National Employment Standards
Noting clause 6.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.
Conclusion
The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.
With the undertakings now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.
The Transport Workers' Union of Australia (TWU) lodged a declaration in the prescribed form[4] giving notice under s.183 of the Fair Work Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Fair Work Act, I note the Agreement covers the TWU.
The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 5 September 2028.
DEPUTY PRESIDENT
Annexure A
[1] Fair Work Act 2009 s 185(2)(a).
[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.
[3] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.)[2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd[2019] FWCFB 1717, [40]-[46].
[4] Form F18.
Printed by authority of the Commonwealth Government Printer
<AE530350 PR791469>
0
0
0