Australian Truck & 4WD Rentals Pty Ltd

[2020] FWCA 4094

[2020] FWCA 4094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Truck & 4WD Rentals Pty Ltd
(AG2020/1949)

AUSTRALIAN TRUCK & 4WD RENTALS ENTERPRISE AGREEMENT 2020-2023

Vehicle industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 4 AUGUST 2020

Application for approval of the Australian Truck & 4WD Rentals Enterprise Agreement 2020-2023.

[1] An application has been made for the approval of an enterprise agreement known as the Australian Truck & 4WD Rentals Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Truck & 4WD Rentals Pty Ltd. The Agreement is a single enterprise agreement.

[2] I have noted that on 5 June 2020, Australian Truck & 4WD Rentals Pty Ltd sent an email to employees at all locations advising that a vote on the Agreement would be taking place “towards the end of the month”. Attached to this email correspondence was a copy of the Agreement and a document outlining the proposed changes from the Australian Truck & 4WD Rentals Enterprise Agreement 2017-2020 (the previous Agreement), together with links to various modern awards and pieces of legislation referred to in the Agreement. I also note that at 11.10AM on Monday 22 June 2020, a further email was sent by Australian Truck & 4WD Rentals Pty Ltd to employees at all locations advising that the vote on the Agreement would be taking place from Wednesday 24 June 2020 until midnight on Monday 29 June 2020, that the voting would be hosted by electionrrunner.com and that employees would receive an email with a link to the voting page. As the access period for the Agreement in this matter covered 17 June 2020 – 23 June 2020 inclusive, two issues require further consideration.

[3] Firstly, s.180(2) of the Act outlines that the employer must take all reasonable steps to ensure that the employees employed at the time who will be covered by an agreement are given a copy of the written text of the agreement and any other material incorporated by reference in the agreement (or have access to them) during the access period for the agreement. While the email correspondence dated 22 June 2020 would appear to suggest this was not the case in this matter, Australian Truck & 4WD Rentals Pty Ltd has advised that this email correspondence also included the same copy of the Agreement and document outlining the proposed changes from the previous Agreement, together with the same links to the various modern awards and pieces of legislation referred to in the Agreement that were attached to the email sent to employees on 5 June 2020. As such, I am satisfied that the requirements of s.180(2) of the Act have been met.

[4] Secondly, while s.180(3) of the Act outlines that the employer must take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method that will be used by the start of the access period, this did not occur. As to this, Australian Truck & 4WD Rentals Pty Ltd submitted that having been advised on 22 June 2020, there was a seven period before the vote was to conclude on 29 June 2020.

[5] While the employees were not notified of the time and place at which the vote would occur and the voting method that was to be used by the start of the access period, I am nonetheless satisfied the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed notwithstanding this minor procedural error. 1 Firstly, the email correspondence sent on 5 June 2020 flagged that a vote on the Agreement would be taking place “towards the end of the month.” Secondly, once notified of the matters required under s.180(3) of the Act, the employees had a further seven full days before the voting for the Agreement was to conclude. Thirdly, the voting period was of a six full days’ duration and the voting method was by electronic means and finally, the voter turnout for the Agreement was higher than the voter turnout for the previous Agreement.

[6] As to other matters, I note that Clauses 34(2) and 34(4) of the Agreement purport to authorise deductions from an employee’s pay where the employee is deemed to be at fault for any damage to a company vehicle. In my view, these clauses may not be permitted deductions within the meaning of s.324 of the Act and, pursuant to s.326 of the Act, are likely to have no effect to the extent that they are not permitted deductions. 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.

[7] Accordingly, on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusions at paragraphs [3] and [5] above, 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.

[8] The Agreement is approved and, in accordance with s.54, will operate from 11 August 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

 1 Fair Work Act 2009, s.188(2).

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