Fair Work Australia rejects Rhino Transport's enterprise agreement, jeopardising the operator's ability to bid for new contracts
By Brad Gardner | May 18, 2010
Queensland heavy haulage operator Rhino Transport’s ability to bid for new contracts has been jeopardised after its proposed enterprise agreement was rejected by Fair Work Australia.
Commissioner Barbara Deegan struck down the agreement because it did not meet provisions under the Fair Work Act or clearly outline terms and conditions for employees.
Rhino Transport’s tender for new contracts hinged on the agreement passing because there was a clause outlining its compliance with the National Code of Practice for the Building and Construction Industry.
“…the employer wishes to tender for contracts for which a prerequisite is an industrial instrument containing such a term,” Deegan says.
“While I sympathise with the employer’s predicament the document lodged for approval is not capable of approval under the requirements of the Act.”
Deegan says the company knew as far back as March 31 of the problems in the agreement due to previous hearings on the issue, but its representative Peter Schulz did not resolve them.
“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,” Deegan says.
’A LARGE NUMBER OF CONCERNS’
Despite Rhino employees approving the agreement, Deegan ruled that the “confusing” and “uncertain” terms meant they could not have understood the conditions.
Deegan highlighted specific problems with the agreement, such as Rhino listing personal leave as accruing every four weeks when national employment standards require leave to accrue progressively during the year.
Furthermore, the agreement stipulated compliance with the NSW Long Service Leave Act despite Rhino employing 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,” Deegan says.
The agreement failed to specify maximum hours of work for part-time employees, while Deegan was also concerned about the clause requiring drivers to work “sufficient hours” in any one day to meet client requirements provided fatigue management regulations were not breached.
Employees would also be given an unpaid rest break if they had to work at least two hours overtime.
There was also confusion over redundancy payments because the enterprise agreement stated payments would be made “in accordance with provisions of the Act and Award”.
“…’Act’ means the Fair Work Act 2009 but ‘award’ could mean any of four awards. Determining what redundancy provisions apply is impossible,” Deegan says.
“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.”