Eastcoast Truck & Bus Service Centres Pty Ltd & Others

[2021] FWCA 351

[2021] FWCA 351

FAIR WORK COMMISSION

DECISION

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

Eastcoast Truck & Bus Service Centres Pty Ltd & Others
(AG2020/3136)

VENTURA WORKSHOP ENTERPRISE AGREEMENT 2020-2023

Vehicle industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 25 JANUARY 2021

Application for approval of the Ventura Workshop Enterprise Agreement 2020-2023.

[1] Eastcoast Truck & Bus Service Centres Pty Ltd, Invicta Bus Services Pty Ltd, Ventura Transit Pty Ltd, Ventura Bus Lines Pty Ltd, US Bus Lines Pty Ltd, Ivanhoe Bus Company Pty Ltd, Peninsula Transit Pty Ltd and Moorabbin Transit Pty Ltd (the Ventura Group of Companies) has applied for approval of an enterprise agreement known as the Ventura Workshop Enterprise Agreement 2020-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Agreement is a single enterprise agreement, made by eight single interest employers and the relevant employees within the meaning of s.172(2) of the Act.

[3] Ventura Motors Pty Ltd t/a Ventura Bus (Ventura Bus) was bargaining representative of each of the entities earlier defined as the Ventura Group of Companies. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was bargaining representative of employees covered by the Agreement.

Extension of the time for filing

[4] The application was required to be made within 14 days after the Agreement was made on 7 August 2020, in accordance with s.185(3). As the Agreement was not filed until 19 October 2020, it was filed 59 days after the expiry of the statutory timeframe.

[5] The Ventura Group of Companies’ bargaining representative filed evidence of a Ms Kim Caldow (Human Resources Manager of Ventura Bus) which addressed:

a) the reasons for the delay;
b) the composition of the employees covered by the Agreement, being 111 employees at the time of the vote, of whom a majority supported the Agreement and which had reduced by 4 employees at the time of the vote; and
c) that there was no change to the workplace or work environment since the vote was conducted that may have altered the outcome of the vote.

[6] The Ventura Group of Companies submitted that the delay was due to its administrative error and that employees would be disadvantaged if the application were not allowed to proceed. The AMWU, in its role as bargaining representative, supported the Ventura Group of Companies’ request to extend the time for lodgement.

[7] On the materials before the Commission, I am satisfied that there has been no change in the workplace or to the composition of the employees covered that may have a bearing on the voting outcome of the Agreement. The Ventura Group of Companies’ explanation for the delay reflects an error on its part due to ignorance of the statutory requirements including apparently acting on a mistaken belief that the application could be filed at any time. Whilst ignorance of statutory requirements including the timeframe for lodgement is not ordinarily an acceptable reason for delay, I consider the consequence of a refusal to grant the extension of time would have a disproportionately negative impact on the employees covered by the Agreement and result in delay and unnecessary administration in circumstances where there was an overwhelming majority of employees to be covered in support of and entitled to access the benefits of the Agreement. In all of the circumstances, and in accordance with s.185(3)(b), I consider it fair to extend the period within which the application must be made to 19 October 2020.

Genuinely agreed

[8] The Notices of Employee Representational Rights (Notices) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it appears that the Notices provided to the employees by their respective employers (being the entities comprising the Ventura Group of Companies), are in the preceding form that is no longer prescribed by the Act. The Notices were otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[9] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

The better off overall test

[10] Since the application was made, further information was sought in relation to whether the Agreement passes the “better off overall test”.

[11] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The Undertakings were not opposed.

[12] 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

Conclusion

[13] On the basis of the material contained in the application and related materials, 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.

[14] The AMWU, 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.

[15] The Agreement was approved on 25 January 2021 and, in accordance with s.54, will operate from 1 February 2021. The nominal expiry date of the Agreement is 31 March 2023.

DEPUTY PRESIDENT

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Annexure A

 1   [2019] FWCFB 318.