Australian Pacific Touring Pty Ltd

[2019] FWC 3046

[2019] FWC 3046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Pacific Touring Pty Ltd
(AG2019/101)

COMMISSIONER MCKINNON MELBOURNE, 3 MAY 2019

Application for approval of the Australian Pacific Touring (APT) KOWA Tour Guides, Tour Directors & Tour Drivers Enterprise Agreement 2018.

[1] Application has been made by Australian Pacific Touring Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Australian Pacific Touring (APT) KOWA Tour Guides, Tour Directors & Tour Drivers Enterprise Agreement 2018 (the Agreement). The Agreement covers the Applicant and employees employed to work on Kimberley and Outback Wilderness Adventures (KOWA) Touring Programs within Australia in the classifications of Tour or Cruise Director, Driver and Extended Driver/Guide. The Agreement operates to the exclusion of any relevant modern award.

[2] On 17 April 2019, concerns in relation to the application were raised with the Applicant by email and an opportunity for undertakings was provided. The Applicant provided its substantive response to those concerns on 23 April 2019. One of the employee bargaining representatives also confirmed their support of “the way that negotiations were done and the overall outcome of the final agreement” on 23 April 2019.

[3] The matters raised with the Applicant dealt with a range of matters including the signature page of the Agreement, whether the Agreement was genuinely agreed, the shift worker definition, the nominal expiry date, potential for terms of the Agreement to exclude the National Employment Standards (NES) and the better off overall test. The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant modern award for the purposes of the better off overall test in relation to Drivers who are covered by the Agreement. I am not otherwise satisfied that there is a relevant modern award for the purposes of the better off overall test.

[4] The nominal expiry date in the Agreement is more than four years from the date of approval. An undertaking has been given to address the concern.

[5] The response in relation to whether the meaning of ‘shift worker’ in the Agreement complies with the requirements of section 196 of the Act does not address the concern. It is not a matter of ensuring that the NES applies but rather of ensuring that shift workers are not disadvantaged in relation to the accrual of annual leave in the transition from a modern award to an enterprise agreement.
[6] The concern in relation to the NES has been addressed by the provision of an undertaking.

[7] As to the better off overall test, concerns were raised in relation to:

1. The absence of rates of pay in the Agreement for trainees and apprentices;

2. Whether casual employees would be better off overall if required to work predominantly on public holidays; and

3. Whether employees working only on Sundays would be better of overall in the absence of Sunday penalty rates.

[8] The Applicant has amended the draft Agreement to incorporate a new rate of pay for trainees but not apprentices. Had it been necessary to do so, I would have given the Applicant a further opportunity to provide the amendment in the form of an undertaking to be approved with the Agreement, which might have addressed the concern in relation to trainees, but not apprentices.

[9] The Applicant has given undertakings intended to address the concerns about employees working only or predominantly on Sundays or public holidays, by ensuring that the Agreement does not exclude more beneficial terms of the NES. Unfortunately, the undertakings do not address the relevant concerns which go to the absence of penalties for work on Sundays and public holidays, rather than the operation of the NES.

[10] There is also the question of whether the Agreement was genuinely agreed. I have no doubt that the parties who made the Agreement were well-intentioned and that it is difficult to make an enterprise agreement in the context of its business, which employs a varying number of working holiday makers and other short term employees at any given time. However, the Act prescribes a set of specific processes and timeframes that must be met in order for an Agreement to be capable of approval.

[11] Those include the requirements in section 180(2) of the Act to take all reasonable steps to at least ensure that during the access period for the agreement, employees have access to a copy of the proposed agreement and any other material incorporated by reference. The access period ends on the day before the start of the voting process. 1

[12] On the information provided by the Applicant, employees were given a copy of the final agreement on 24 December 2018. At the same time, they were sent a ‘Survey Monkey’ link to vote on the Agreement which was active from 24 December 2018 to 4 January 2019. In other words, voting was able to commence on 24 December 2018. That was the first day after the access period ended.

[13] There is no material before me to indicate that employees had access to the Agreement at any time during the access period, which was the 7 day period from 17 December 2018 to 23 December 2018. It follows that I cannot be satisfied the requirement in section 180(2) was met.

[14] Section 180(3) separately provides that employees must be notified of the time, place and method of the vote by the start of the access period for the Agreement, which is defined as the 7 day period ending immediately before the start of the voting process (that is, the day before voting commences). 2 As the facts above make clear, this information was only provided on the first day after the access period. Earlier advice to employees on 31 August 2018 about the agreement making process foreshadowed voting by way of an online link, but did not specify the time of the vote. I am not satisfied that the requirement in section 180(3) of the Act was met in relation to the Agreement.

[15] I might have waived the error in relation to section 180(3) of the Act on the basis that it was a minor procedural error not likely to disadvantage employees, given the nature of the vote which occurred electronically by online survey, and because there is evidence that all relevant employees had the opportunity to vote and did so. However, I am not satisfied that the defect identified in relation to section 180(2) can properly be considered a minor procedural or technical error within the meaning of section 188(2)(a) of the Act. While it was clearly a procedural error, the result was that employees did not have access to the requisite information at all during the access period for the Agreement. 3

[16] Finally, employees have the right to nominate a bargaining representative of their choice to act on their behalf in bargaining for enterprise agreements. 4 Imposing a limit on the total number of employee bargaining representatives who can participate in bargaining, or an employer choosing the representatives of employees, may be inconsistent with this right. The materials before me indicate that a limit on the number of employee bargaining representatives as imposed by the Applicant in this matter. The email to employees of 31 August 2018 advised that employees would be asked to nominate a representative and states as follows:

“The end result will be that 2 representatives for KWA and 1 representative for OWA will be appointed.”

[17] It is difficult to interpret that statement as anything other than the imposition of a limit on the number of bargaining representatives. That may have been a practical course in the context of the business. However, it raises a concern about whether the Agreement was genuinely agreed for the purposes of section 188 of the Act.

[18] On the material before, I am not satisfied that the Agreement was genuinely agreed.

[19] For the reasons set out above, the Agreement does not meet each of the relevant requirements for approval of an enterprise agreement contained in sections 180, 186, 187, 188 and 196 of the Act. It follows that the Agreement cannot be approved.

[20] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR707945>

 1   Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd[2018] FWCFB 2732, [42]

 2   Fair Work Act 2009 (Cth), s.180(3); Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd[2018] FWCFB 2732, [42]

 3   Fair Work Act 2009 (Cth), s.188(2)(b)

 4   Fair Work Act 2009 (Cth), s.176