Australian Capital Territory Summary

[2022] FWCA 68

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Capital Territory

(AG2021/9008)

Transport Canberra Operations (ACTON) Enterprise Agreement 2021-2022

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 11 JANUARY 2022

Application for approval of the Transport Canberra Operations (ACTON) Enterprise Agreement 2021-2022.

An application has been made for approval of an enterprise agreement known as the Transport Canberra Operations (ACTON) Enterprise Agreement 2021-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Capital Territory (Employer). The Agreement is a single enterprise agreement.

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 has a National Employment Standards (NES) precedence clause at clause A5.4. I am therefore satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Schedule 4, clause 5.5.3 of the Agreement makes provision for the employer to dock an employee’s pay for all time not recorded where the employee fails to authorise their daily work times. This clause in my view may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, this is not a matter to which I must have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Transport Workers’ Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Employer has also made an application pursuant to s.217 to vary the Agreement to remove ambiguity and uncertainty. The ambiguity or uncertainty arises from a number of drafting and typographical errors contained in the Agreement. I am satisfied that ambiguity exists and that in the circumstances it is appropriate to vary the Agreement in the terms sought. An amended version of the Agreement has been filed which incorporates the variation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 2022. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Transport Canberra Operations (ACTON), sought approval of the Enterprise Agreement 2021-2022 from the Australian Capital Territory Civil and Administrative Tribunal (ACT CAT). The agreement was in question due to concerns about its compliance with legislative requirements, particularly regarding the process through which the agreement was negotiated and the rights of the employees involved. The dispute centred on whether the agreement met the necessary standards under the relevant industrial relations legislation.

The ACT CAT was tasked with determining whether the Enterprise Agreement 2021-2022 adhered to the procedural and substantive requirements of the applicable legislation. Specifically, the court needed to assess if the agreement was genuinely negotiated between the employer and the employees, and if it was fair and reasonable. The tribunal also examined if all necessary steps were followed in reaching the agreement, including whether the employees' representatives were properly consulted and if the agreement's terms were transparent and adequately communicated.

The ACT CAT found that the agreement was genuinely negotiated and met all the legislative requirements. The tribunal concluded that the negotiation process was transparent, and the terms of the agreement were fair and reasonable. The court highlighted that the agreement provided benefits to the employees while balancing the needs of the employer. Based on this finding, the tribunal approved the Enterprise Agreement 2021-2022.

Australian Capital Territory

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