CDC Victoria Pty Ltd T/A CDC Victoria

[2014] FWCA 8170

FAIR WORK COMMISSION

DECISION

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

CDC Victoria Pty Ltd T/A CDC Victoria
(AG2014/9763)

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

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 NOVEMBER 2014

Application for approval of the CDC Victoria Pty Ltd ABN 21 006 822 420 - Oakleigh 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 - Oakleigh Depot Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 53 employees who are employed as Bus Drivers, Conductors, Ticket Sellers, Cleaners, Greasers and Bowser Attendants based in Oakleigh, 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 29 September and 3 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 44 of the 45 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 November 2014. While I note that this is outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair, in all the circumstances, to extend the time for lodgement to 5 November 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Kefford, People and Compliance Manager, 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] The Union 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.

[5] Having reviewed 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 - Oakleigh Depot Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 25 November 2014 and have a nominal expiry date of 31 March 2018..

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CDC Victoria Pty Ltd, trading as CDC Victoria, applied to the Fair Work Commission for approval of the Oakleigh Depot Enterprise Agreement 2014. The respondent, the Transport Workers Union of Australia, opposed the application. The nature of the dispute involved whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement contained the necessary minimum terms as outlined in the Fair Work Act, and whether it was made in good faith and without coercion. The respondent argued that the agreement did not meet these criteria and raised concerns about the process through which the agreement was negotiated. The applicant, on the other hand, maintained that the agreement was fairly negotiated and contained all the required minimum terms.

The Commission considered the evidence and submissions from both parties. It examined the process of negotiation, the contents of the agreement, and whether the agreement was made in good faith. The Commission found that the agreement was made in good faith and included all the necessary minimum terms. It rejected the respondent's claims of procedural unfairness and coercion, determining that the agreement was valid and should be approved. The Commission's decision was in favour of CDC Victoria, and it approved the Oakleigh Depot Enterprise Agreement 2014.

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