[2010] FWA 2798

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Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Rhino Transport (QLD) Pty Ltd


Road transport industry



[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

[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 raised with Mr Schulz on 31 March 2010 in a preliminary telephone conference. The conference had been arranged as Mr Schulz had indicated that there was some urgency attached to the approval of the agreement and it was considered that it was sensible to advise him, at the earliest possible opportunity, that one of the mandatory requirements of the Act appeared not to have been met. In the same telephone conference a number of other concerns were also raised with Mr Schulz relating to the terms of the agreement. The matter was then listed for the earliest possible hearing. Had Mr Schulz taken the view that the matters raised with him may have resulted in the agreement not meeting the necessary requirements for approval it was open to him, at that stage, to withdraw the application and pursue a replacement agreement.

[10] The requirements of s.181(2) of the Act were again raised with Mr Schulz at the hearing on 19 April. Mr Schulz advised that the answer to the question in the Statutory Declaration was wrong and that the required 21 day interval had elapsed before the employees were requested to vote on the agreement. In support of his claim Mr Schulz tendered an undated document which he asserted had been provided to the employees. Mr Schulz had no personal knowledge of the provision of the document. I noted that I would not accept his assertion in relation to the requirement. I requested that he obtain from the employer, whom he stated had distributed the document, a statutory declaration concerning the timing of that distribution. I also requested that a similar document, confirming the timing, be provided by an employee. Mr Schulz undertook to provide those documents.

[11] The statutory declarations were provided soon after the 19 April hearing.

The Agreement terms

[12] At the hearing of the matter I also raised a large number of concerns about the terms of the agreement sought to be approved. I indicated to Mr Schulz that the agreement terms were such that I was unable to properly apply the “better off overall” test pursuant to s.193 of the Act and that I was concerned that the terms were so uncertain that I could not be satisfied that the employees could have “genuinely agreed” to approve the agreement, as in my view they could not possibly have understood what conditions of employment would apply under the agreement.

[13] Numerous problems with the wording of the agreement were raised with Mr Schulz.

It was indicated that the coverage of the agreement was confusing. Clause 3 of the agreement states:

but no “persons” are listed at Clause 8 of the agreement. Clause 6.1 states that the agreement is binding on “all persons as defined in clause 2.5”. While “ persons” is not defined in clause 2.5, “employee” is :

As there are classifications in clause 8 it is possible discern what the coverage was intended for the agreement.

[14] Of greater concern than the confusing coverage clauses is that the Clause 4.4 of the agreement purports to incorporate award conditions but it is impossible to determine from which award those conditions should derive. “Award” is defined at clause 2.3 of the agreement as “the Awards listed at Schedule 1 of this Agreement”.

[15] Schedule 1 of the Agreement is as follows

[16] Examples of agreement clauses which provide for the application of award clauses are:

[17] Other provisions of the agreement are so uncertain as to be meaningless, for example

[18] The agreement provides no maximum hours of work for part-time employees and the requirement in clause 11.1(b) that part-time “working hours shall not be less than 3 hours per day” could be open to an unintended interpretation

[19] Other clauses that cause concern are:

[20] The meaning of the following clauses is unclear

[21] Additionally I am concerned that at least one term of the agreement is inconsistent with the National Employment Standards (“NES”). Clause 17.1 of the agreement provides:

The NES provides:

The terms are inconsistent.

[22] The wording of the public holiday clause also adds to the confusion as it refers to “any other day proclaimed as a Public Holiday within the State”. On the face of the agreement there is no way of determining which “state”. The only references to a state are in the name of the employer “Rhino Transport (Qld) Pty Ltd” and in Schedule 1 to the Agreement which refers to “Relevant Awards and Legislation” and includes a reference to the “New South Wales Long Service Leave Act 1955.” This reference is erroneous. According to Mr Schulz the employer is a company which operates out of Queensland and the employees are employed in Queensland. The NSW Long Service Leave Act has no application. If the reference was intended to apply the legislation to employees covered by the agreement (as was suggested by Mr Schulz), it does not have that effect.

[23] Clause 20 of the Agreement is also of concern:

Under section 2 of the agreement, “Act” means the Fair Work Act 2009 but “award” could mean any of 4 awards. Determining what redundancy provisions apply is impossible.

[24] Mr Schulz was unable to enlighten me as to the name of the NAPSA which applies to the employment of the employees covered by the agreement. It would appear to be the Transport, Distribution and Courier Industry Award 2003, Qld (“the Queensland NAPSA”). The federal Road Transport (Long Distance Operations) Award 2000 is referred to by name but Mr Schulz was unable to advise if that award had ever had application to the drivers employed by the employer. He appeared to submit that the Queensland NAPSA had been the only award that had applied prior to January 2010.


[25] Section 190 of the Act provides that:

[26] It is my view that the defects of this agreement could not be rectified by the provision of undertakings. In any event, were undertakings to be offered, they would need to be so expansive that I could not be satisfied that they would not result in a substantial change to the agreement, as required by s.190(3)(b) of the Act.

[27] Employees have a right to know how approval of an agreement will affect their terms and conditions of employment. Nothing put by Mr Schulz gives me any confidence that the employees understood their entitlements prior to voting on the agreement and it is obvious from the manner in which the agreement is worded that nothing in that document would have informed them about the conditions that would apply were the document to be approved by FWA. Section 186(2) of the Act requires that before an enterprise agreement can be approved FWA must be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. Given that a number of the most important terms of the agreement are incapable of interpretation it is my view that I have reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. 1

[28] I gave Mr Schulz every opportunity to provide me with any additional information which may have convinced me that his assertion that the employees “know how it works” was correct. Nothing was supplied.

[29] According to Mr Schulz the urgency attached to the agreement approval is related to the issue addressed in clause 8.13 (National Code of Practice for the Building and Construction Industry) as the employer wishes to tender for contracts for which a prerequisite is an industrial instrument containing such a term. While I sympathise with the employer’s predicament the document lodged for approval is not capable of approval under the requirements of the Act.

[30] The majority of these matters were brought to Mr Schulz’s attention on 31 March, 5 days after the agreement was lodged. It should have been clear to him at that stage that the quickest way to rectify the situation and achieve the result desired by the employer would have been to withdraw the application and have a new, intelligible, agreement prepared for approval. Even when the matters were raised with him at the hearing he persisted with his view that the agreement deficiencies were not such that approval should have been withheld. I am unable to understand how he could have held that view.



P Schulz, agent for the employer.

Hearing details:


19 April 2010.

 1   Fair Work Act 2009, s.188(c).

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