BRS & BJ Ogle Pty Ltd T/A Berry Bus Service

[2019] FWCA 5971

[2019] FWCA 5971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BRS & BJ Ogle Pty Ltd T/A Berry Bus Service
(AG2019/2051)

BRS & BJ OGLE PTY LTD FAIR WORK AGREEMENT

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 28 AUGUST 2019

Application for approval of the BRS & BJ Ogle Pty Ltd Fair Work Agreement.

[1] An application has been made for approval of an enterprise agreement known as the BRS & BJ Ogle Pty Ltd Fair Work Agreement (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The statutory declaration filed with the application raised several procedural issues. The Applicant provided the notice of employee representational rights (NERR), vote notification and voting forms, and the proposed Agreement to all employees on 1 May 2019. Employees were notified that the voting period would commence immediately, on 1 May 2019, and would continue until 5 June 2019. Thus, the employer did not take all reasonable steps to ensure employees had access to the written text of the proposed Agreement during the access period as required by s 180(2) of the Act; did not take all reasonable steps to notify employees of the time, place and method of the vote by the start of the access period as required by s 180(3) of the Act; and made a request that the employees vote on the proposed Agreement earlier than 21 days after the last NERR was given in contravention of the requirement in s 181(2) of the Act.

[3] The issues were raised with the Applicant. In response, the Applicant submitted that: first, they are a small business with four employees who are regularly away from their place of business, and as such the provision of all materials on 1 May 2019 was intended to, and did, allow employees time to consider the material and vote on, or prior to, the ‘nominal’ voting date of 5 June 2019; secondly, a meeting was held on 1 May 2019 in which the proposed Agreement was explained to employees, which included comparing the proposed Agreement terms with the Passenger Vehicle Transportation Award 2010, discussing the main terms of the proposed Agreement,and answering questions regarding pay and conditions; thirdly, of the three employees who voted on the Agreement, all voted more than 7 days after they were notified of the vote on 1 May 2019 and more than 21 days from the provision of the NERR on 1 May 2019 (23 May, 28 May and 4 June 2019 respectively).

[4] In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 the errors constitute minor procedural or technical errors for the purposes of paragraph 188(2)(a) of the Act. Further, having regard to the content of the statutory declaration, and the responses provided by the Applicant (described at paragraph 3, above), I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of subsection 188(2) of the Act.

[5] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[6] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[7] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[8] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 4 September 2019. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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