The Trustee for the Dace Trust T/A Kent Relocation Group Pty Ltd
[2023] FWCA 7
•5 JANUARY 2023
| [2023] FWCA 7 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
The Trustee for the Dace Trust T/A Kent Relocation Group Pty Ltd
(AG2022/5345)
KENT RELOCATION GROUP PTY LTD PERTH WA ENTERPRISE AGREEMENT 2022-2025
| Road transport industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 5 JANUARY 2023 |
Application for approval of the Kent Relocation Group Pty Ltd Perth WA Enterprise Agreement 2022-2025
The Trustee for the Dace Trust T/A Kent Relocation Group Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Kent Relocation Group Pty Ltd Perth WA Enterprise Agreement 2022-2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The notice of employee representational rights (NERR) provided to employees stated that the Agreement would ‘cover employees that are employed in Melbourne and are appointed by the Employer to a classification level provided for and described in the Agreement, relating to drivers, store persons, offsiders and yardpersons.’ Clause 3.1.2 of the Agreement states that the Agreement covers ‘[t]hose employees of the Employer who are employed in Western Australia and fall with the definition at Clause 4.6.’ The Applicant conceded that the reference to Melbourne in the NERR was a typographical error and should have instead referred to Perth.
I am satisfied, having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd,[1] that the abovementioned error constituted a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that the employees were not likely to have been disadvantaged by the error.
Clause 15.1.5(b) of the Agreement provides that the period of notice of termination does not apply to apprentices. Clause 15.2.2 provides that if an employee does not give the required notice of resignation, the Applicant has the right to withhold monies due to the employee equal to what the employee would have received for the notice period. Clause 16.8 provides that the Agreement’s redundancy provisions do not apply to employees whose employment is terminated for misconduct or poor performance. Clause 26.13.1 requires that employees provide ten weeks’ notice of intention to take parental leave and four weeks’ notice of the dates of parental leave, with clause 26.13.3 providing an exception only where confinement takes place earlier than expected.
Although it appears that these clauses, in part, are contrary to various provisions of the National Employment Standards in Part 2-2 of the Act, I am satisfied that the issues are resolved by the inclusion of clause 7.1 of the Agreement.
The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.
In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.
The Transport Workers’ Union of Australia (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 5 January 2023 and, in accordance with s 54, will operate from 12 January 2023. The nominal expiry date of the Agreement is 30 September 2025.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318.
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