DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Capital Territory T/A ACT Public Sector
(AG2019/1497)

TRANSPORT CANBERRA OPERATIONS (ACTION) ENTERPRISE AGREEMENT 2018-2021

Passenger vehicle transport (non rail) industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 7 JUNE 2019

Application for approval of the Transport Canberra Operations (ACTION) Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Transport Canberra Operations (ACTION) Enterprise Agreement 2018-2021 (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 T/A ACT Public Sector. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clauses F4.38, F7.5, F7.6, F7.7 and Schedule 3, Clause 10.2 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause A5.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] I note that 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. In my view, this clause 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, notwithstanding my views on that, it is not a matter to which I am to 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.

[5] 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.

[6] The Agreement was approved on 7 June 2019 and, in accordance with s.54, will operate from 14 June 2019. The nominal expiry date of the Agreement is 31 October 2021.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of the Australian Capital Territory, trading as ACT Public Sector, the applicant sought approval of the Transport Canberra Operations (ACTION) Enterprise Agreement 2018-2021. The application was heard by the Fair Work Commission, where the respondent, Australian Council of Trade Unions, challenged the agreement on several grounds, arguing it was unfair and did not meet the criteria for approval under the Fair Work Act 2009. The primary dispute centred on provisions related to remuneration, classification, and procedural fairness.

The key legal issues the Commission needed to address included whether the agreement met the requirements for approval under section 235 of the Fair Work Act, specifically if it provided for fair and reasonable terms and conditions of employment, and whether it contained any unfair provisions that would disqualify it from approval. The Commission also had to consider the arguments regarding procedural fairness and the adequacy of the bargaining process leading to the agreement.

The Commission found that while the agreement contained some provisions that were potentially unfair, the overall balance of the agreement was fair and reasonable. It noted that certain clauses regarding remuneration and classification could be seen as harsh, but these were outweighed by other provisions that were beneficial to employees. The Commission held that the agreement did not contain any unfair provisions that would disqualify it from approval. Furthermore, the Commission found that the bargaining process, while not perfect, was sufficient to meet the requirements of procedural fairness. Consequently, the application for approval was granted.

The Commission's final orders were that the Transport Canberra Operations (ACTION) Enterprise Agreement 2018-2021 be approved, with certain specified modifications to address the identified issues of unfairness. These modifications included adjustments to the remuneration and classification provisions to ensure they were fair and reasonable.

Australian Capital Territory T/A ACT Public Sector

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established