Busways Pacific Pty Ltd T/A Busways

[2021] FWCA 2019

[2021] FWCA 2019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Busways Pacific Pty Ltd T/A Busways
(AG2020/4229)

BUSWAYS PACIFIC FAIR WORK AGREEMENT 2020

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 14 APRIL 2021

Application for approval of the Busways Pacific Fair Work Agreement 2020.

[1] Busways has made an application for approval of a single enterprise agreement known as the Busways Pacific Fair Work Agreement 2020 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was filed, various concerns have been raised by and with the Commission in relation to: the form of the application, whether the Agreement passes the “better off overall test” and whether the employees “genuinely agreed”.

[3] The Transport Workers’ Union of Australia (TWU) was a bargaining representative. 1 There were also 18 employee bargaining representatives.2 Two employee bargaining representatives sought to address the Commission about the application and did so in accordance with Commission directions, pursuant to a confidentiality order made with consent of the Applicant and the TWU.

[4] Having considered all of the submissions, evidence, further information and materials, undertakings and views provided by the Applicant, the TWU and the employee bargaining representatives, I have determined that the Agreement must be approved in accordance with the Act. The reasons follow.

Agreement passes the “better off overall test”

[5] I must be satisfied that the Agreement passes the “better off overall test” in assessing whether it must be approved in accordance with the Act.

[6] An enterprise agreement passes the “better off overall test” if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be “better off overall” if the enterprise agreement applied, than if the modern award applied. 3 The assessment will logically focus attention on matters that are objectively verifiable as relative benefits or detriments, including in particular the number of hours that employees can be required to work and the payments employees receive for doing so. The analysis inquires whether employees would be better off overall under the Agreement than under the relevant award, not better off on a line by line or itemised basis.4 It is plainly permissible under the Act to trade off or vary Award conditions in making an enterprise agreement.

[7] The relevant modern award, for the purposes of the “better off overall test” for the Agreement, is the Passenger Vehicle Transportation Award 2020 (Award).

[8] It is common ground that wage rates in the Agreement are higher under the Agreement than in the Award. During the course of the proceedings, various other benefits and some detriments were identified in the terms of the Agreement than if the Award applied.

[9] The Applicant proposed a final set of written undertakings directed at addressing the Commission’s concerns, in accordance with s.190 of the Act (Undertakings). The bargaining representatives did not oppose the Undertakings. A copy of the Undertakings is attached at Annexure A. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement.

[10] On an overall assessment of whether employees to be covered would be better off overall under the Agreement, including with regard to the more beneficial and the less beneficial terms in the Agreement and the Undertakings, I am satisfied that the Agreement passes the “better off overall test”.

Genuinely agreed

[11] Another requirement for approval of an enterprise agreement, set out in s.186(2)(a), is that the Commission must be satisfied that the agreement has been “genuinely agreed to” by the employees covered by the agreement. Section 188 defines when employees have “genuinely agreed”.

[12] In considering whether there was “genuine agreement”, s.188(1)(b) requires compliance with s.182(1). The cohort of employees entitled to be asked to vote under s.182(1) are those who were: “employed at the time” of the access period and the request to vote and “who will be covered” by the enterprise agreement. 5 The Applicant declared that 325 employees were covered by the Agreement, of which 293 cast a valid vote and 215 employees voted to approve it.6 Of the cohort of employees assessed as eligible to vote, 286 were engaged as casual. During the course of these proceedings, 6 employees were identified as ineligible to vote.7 This is not fatal to the question of approval because the Agreement was still approved by a valid majority.8

[13] In considering whether there was “genuine agreement”, s.188(1)(a)(i) requires compliance with s.180(5), which provides that the employer must take all reasonable steps to ensure that the terms of the enterprise agreement, and the effect of those terms, are explained to the relevant employees in an appropriate manner taking into account any particular circumstances and needs. It is not controversial that the Agreement is effectively a “rollover” of the terms and conditions in the predecessor enterprise agreement. It includes relatively few changes. The Applicant declared that the steps taken to explain the terms and effect of the Agreement included: provision of a marked-up version of the Agreement, a table outlining the changes and a brief written explanation of each term of the Agreement; information sessions conducted at each of the relevant depots including an opportunity for employees to ask questions; and the opportunity to ask questions via an information line and a dedicated email address. 9 I address in turn the matters raised in the course of the proceedings relevant to this approval consideration:

a) The Applicant’s explanation focussed on the differences between the Agreement and the predecessor enterprise agreement which applied to the relevant employees at the time of the vote. In all of the circumstances, I am satisfied that this is not a case in which an explanation of the specific benefits and detriments against the Award was required in order to meet the obligation at s.180(5). 10

b) One employee bargaining representative raised a concern about the explanation of a new condition in the Agreement (the introduction of a 2.1 hour minimum engagement for casuals, previously a 1 hour minimum engagement for casuals) and how it may operate in practice. Further information was provided by the Applicant in this respect. An inspection of the written explanatory materials demonstrates that this change was highlighted to employees and was self-explanatory on the face of the Agreement. An Undertaking satisfactorily remedies any concern about defined terms as they relate to this provision - since the explanation given was consistent with this. 11 There is nothing before me to suggest that the explanation was not provided in an appropriate manner taking into account the particular circumstances and needs of the employees. I do not consider the steps taken to explain the terms and effect of the Agreement fall short of the obligation in this respect.12

c) One employee bargaining representative indicated some dissatisfaction with the vote process (in terms of meetings conducted in groups, timing and speed of the meetings). Further information was provided in this respect, including to establish that these concerns about the process were raised and addressed during the bargaining process which extended for a number of meetings and a period of some months from February 2020 before the Agreement was made in late December 2020. It was acknowledged that meetings were put “on hold” from late March until late September 2020, due to social distancing requirements and other operational issues arising from the COVID-19 pandemic, however email communication about bargaining claims continued during this period. 13

[14] Having regard to all of the materials before the Commission, I am satisfied that all reasonable steps were taken to explain the terms and effect of the Agreement in compliance with s.180(5) and as required by s.188(1). I do not consider there to be any other reasonable grounds for considering that the Agreement was not “genuinely agreed” within the meaning of s.188. Having so found, it is not necessary to consider the application of s.188(2).

Approval and operation of the Agreement

[15] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[16] Noting clause 4(e) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[17] The TWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers this organisation.

[18] The Agreement was approved on 14 April 2021. Notwithstanding clause 3(a) of the Agreement and in accordance with s.54, the Agreement will operate from 21 April 2021. The nominal expiry date of the Agreement is 31 December 2023.

[19] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 14

DEPUTY PRESIDENT

Annexure A

 1 F18 filed on 24 December 2020.

 2   Attachment to F16 filed on 21 December 2020.

 3   ss.193(1) and (6) of the Act.

 4   BOC Limited [2019] FWCA 5544.

 5   ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53; National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (Swinburne); Appeal by Shop, Distributive and Allied Employees Association & Ors[2019] FWCFB 7599 at [33].

 6 F17 Statutory Declaration, at item 26.

 7   Applicant’s submission dated 16 March 2021; further evidence subject of confidentiality order filed 16 March 2021.

 8   Swinburne at [10].

 9 F17 Statutory Declaration, at items 22 and 24.

 10   See, for example, BGC Contracting Pty Ltd [2018] FWC 1466 at [87]; CFMMEU v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022 (Ditchfield) at [71].

 11   CFMMEU v Karijini Rail Pty Ltd [2020] FWCFB 958 at [107].

 12   Ditchfield at [68].

 13   Applicant’s submission filed 6 April 2021.

 14   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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