CDC Victoria Pty Ltd

[2014] FWCA 8029

[2014] FWCA 8029

FAIR WORK COMMISSION

DECISION

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

CDC Victoria Pty Ltd
(AG2014/9738)

CDC VICTORIA PTY LTD ABN 21 006 822 420 - BALLARAT DEPOT ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 NOVEMBER 2014

Application for approval of the CDC Victoria Pty Ltd ABN 21 006 822 420 - Ballarat Depot Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by CDC Victoria Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the CDC Victoria Pty Ltd ABN 21 006 822 420 - Ballarat Depot Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 62 employees employed as Bus Drivers, Conductors, Ticket Sellers, Cleaners, Greasers and Bowser Attendants based in Ballarat, Victoria. 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 14 April 2014, and voting for the Agreement’s approval took place between 20 and 24 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 50 of the 62 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 30 October 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Kefford identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Workers (Passenger Vehicles) Award 2002 [AP818060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Keffordsaid that 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 and that there are no less beneficial terms. The Agreement provides for higher rates of pay, continuous service grants and additional annual leave for shiftworkers who do not regularly work rostered hours on Sundays or public holidays. Rates of pay are to be increased on 1 January and 1 July during the nominal term of the Agreement by reference to percentage changes between average weekly earnings in the preceding May to November and November to May, respectively. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 18 and 19 respectively. A disputes resolution procedure at clause 12 refers erroneously to Fair Work Australia, but I take this as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 10 November 2014, Mr B Kefford appeared for the applicant. The Union did not appear, but 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 Kefford 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 said the Agreement was based on other similar industry agreements which have recently been approved by the Commission.

[5] Having heard the applicant’s 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 CDC Victoria Pty Ltd ABN 21 006 822 420 - Ballarat Depot Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 17 November 2014 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

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