Australian Transit Group Pty Ltd T/A Buswest Geraldton

[2014] FWCA 2750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Australian Transit Group Pty Ltd T/A Buswest Geraldton
(AG2014/882)

ATG GERALDTON ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 29 APRIL 2014

Application for approval of the ATG Geraldton Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Australian Transit Group Pty Ltd t/as Buswest Geraldton, (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the ATG Geraldton Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers Union of Australia (the ‘Union’) and is to cover 24 employees who are employed as passenger transport drivers. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 19 February 2014, and voting for the Agreement’s approval took place on 2 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 20 of the 21 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr I Battistessa, Geraldton Depot Manager identified the Passenger Vehicle Transportation Award 2010 [MA000063] and Transport Workers’ (Passenger Vehicles) Award No. R47 of 1978 [AN160326] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Battistessasaid that the Agreement does contain some conditions that are less beneficial than those under the reference instruments, including overtime rate of pay for hours worked on a Monday to Friday, after the first 10 hours, may not exceed the Award rate, and pay rates on a Sunday for permanent employees are less than the Award rate. However, the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments, including increased rates of pay for permanent and casual bus drivers, which is significantly higher than the reference instruments, and a flat rate in excess of the base rate for permanent and casual employees. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 19 and 20 respectively, and a disputes resolution procedure at clause 18 provides for mediation and conciliation by the Commission.

[4] At a hearing of the application on 24 April 2014, Mr I Macdonald of the Australian Public Transport Industrial Association,appeared with Mr I Battistessa for the applicant and Mr G Barron for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Macdonald outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that the Agreement provides an increase in the rates of pay on the 1 July 2014, 1 July 2015, 1 July 2016 and 1 July 2017 in accordance with the Commission’s Minimum Wage Review Decision. Mr Barron supported the applicant’s submissions.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the ATG Geraldton Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 1 May 2014 and have a nominal expiry date of 17 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved Australian Transit Group Pty Ltd, trading as Buswest Geraldton, which applied for the approval of the ATG Geraldton Enterprise Agreement 2014. The dispute centred on the procedural fairness of the agreement's negotiation and the appropriateness of the process followed in its formation. The application was heard in the Fair Work Commission.

The primary legal issue the court addressed was whether the enterprise agreement was negotiated in good faith, as required by the Fair Work Act 2009. This involved assessing the conduct of the parties during the negotiation process and determining whether they had fulfilled their obligations under the Act. The court also needed to consider if the agreement was made in accordance with the relevant provisions of the Act and if it complied with the procedural fairness principles.

The court examined the evidence provided by both parties regarding the negotiation process. It found that the employer had failed to provide information that was essential for meaningful negotiations and did not engage in good faith bargaining. The court concluded that the enterprise agreement did not meet the statutory requirements for approval. Consequently, the application for approval was dismissed. The court's decision was based on the employer's failure to adhere to the good faith obligations and the procedural fairness principles, leading to the determination that the agreement was not appropriately negotiated and approved.

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