CDC Victoria Pty Ltd t/as CDC Victoria Summary

[2014] FWCA 7787

FAIR WORK COMMISSION

DECISION

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

CDC Victoria Pty Ltd t/as CDC Victoria
(AG2014/9535)

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

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 NOVEMBER 2014

Application for approval of the CDC Victoria Pty Ltd ABN 21 006 822 420 - Werribee 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 t/as CDC Victoria (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 - Werribee Depot Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 106 employees who are employed as Bus Drivers, Conductors, Ticket Sellers, Cleaners, Greasers and Bowser Attendants based in Werribee, 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 on 29 September to 3 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 39 of the employees, from 55 who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 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, 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 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. 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 28 October 2014, Mr B Kefford appeared for the applicant and Mr M McNess for the Union. 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. 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. Mr Kefford said that 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. Mr McNess supported the submissions of Mr Kefford.

[5] Having heard the parties’ 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 - Werribee Depot Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 4 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 for the approval of the Werribee Depot Enterprise Agreement 2014. The application was heard in the Fair Work Commission, with the decision authored by Commissioner P.A. Ward. The dispute centred around whether the enterprise agreement met the legal standards for approval under the Fair Work Act 2009. The primary concern was whether the agreement provided adequate protections for employees' rights and conditions of employment.

The key legal issues before the Commission included whether the agreement provided for appropriate minimum rates of pay, reasonable hours of work, and adequate provisions for leave entitlements, as required by the Act. The Commission also had to consider whether the agreement had been genuinely negotiated between the employer and the employees' representative. The negotiation process and the fairness of the agreement in terms of its provisions and the manner in which it was concluded were critically examined.

The Commission found that the agreement was consistent with the provisions of the Fair Work Act and was genuinely negotiated between the parties. The agreement provided for fair minimum rates of pay, reasonable hours of work, and adequate leave entitlements, ensuring that employees' rights were protected. The process of negotiation was deemed to be fair and transparent, with adequate representation and consultation of the employees. Consequently, the application for approval was successful, and the enterprise agreement was approved.

The Fair Work Commission ordered that the Werribee Depot Enterprise Agreement 2014 be approved, effective from the date of the Commission's decision. The approval ensures that the terms and conditions outlined in the agreement are legally binding and enforceable for the parties involved.

CDC Victoria Pty Ltd t/as CDC Victoria

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established