Butler Freight Services Pty Ltd

[2022] FWCA 3750

[2022] FWCA 3750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Butler Freight Services Pty Ltd

(AG2022/4138)

Butler Freight Services Pty Ltd – TWU Enterprise Agreement 2021-2024

Road transport industry
COMMISSIONER LEE	MELBOURNE, 28 OCTOBER 2022

Application for approval of the Butler Freight Services Pty Ltd – TWU Enterprise Agreement 2021-2024

1. An application has been made for approval of an enterprise agreement known as the Butler Freight Services Pty Ltd – TWU Enterprise Agreement 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Butler Freight Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to 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.

1. The Transport Workers Union (TWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The employer did not notify the relevant employees of the voting details by the start of the access period as required under s.180(3) of the Act. Namely, the relevant employees were provided with 6 clear days’ notice, rather than the 7 clear days required. In the circumstances, the Agreement can only be approved if it is appropriate to exercise the discretion available under s.188(2) of the Act. I conducted a Hearing on 25 October 2022 in order to deal with this issue. The Applicant and the TWU appeared and made submissions. The Applicant made submissions to the effect that while they accept there was an error, that it was a minor error and that it was not likely to have disadvantaged employees. The TWU stated that while they support the Agreement being approved, they could not confidently make submissions that employees were not likely to have been disadvantaged.[1]

1. Section 188(2) of the Act is in the following terms:

“188      When employees have genuinely agreed to an enterprise agreement

…

(2)  An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)  the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b)  the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

1. It is noted in the Full Bench of decision of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman)[2] that:

“The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.”[3]

1. Consistent with the decision in Huntsman, I consider that the delay of one day in notifying the vote was a minor error. As to whether employees were likely to have been disadvantaged by that error, the assessment needs to take into account the particular circumstances of the employees and the impact of the error.

1. In this matter, 83% of the employees covered by the Agreement cast a valid vote. The method of conducting the vote was set out in the advice provided to employees on 14 September 2022, which was that employees would collect their ballot paper at the fleet desk as they arrived to commence their shift, be it the AM or PM shift, and were provided the opportunity to vote at that time.[4] Furthermore, according to Mr Walker, the Commercial Director of the Applicant, of the votes, “28 were no, 31 were yes, ten people crossed their name off, and two were an invalid vote.”[5] This indicates that all 71 employees covered by the Agreement had an opportunity to vote.

1. Mr Walker submits that the method of voting meant that the one-day delay would not have made any real difference. Given the manner in which the vote was conducted, I am not satisfied that it was likely that employees were disadvantaged by the error. That is, given all of the circumstances, I am not satisfied it was probable that the number of employees who voted would have been different given the lack of notice.

1. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Annexure A

[1] Transcript at PN85.

[2] [2019] FWCFB 318.

[3] Ibid at [117].

[4] Transcript at PN45-PN46.

[5] Transcript at PN33.

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