Rand Transport (1986) Pty Ltd T/A Rand National Transport Summary

[2013] FWCA 6875

FAIR WORK COMMISSION

DECISION

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

Rand Transport (1986) Pty Ltd T/A Rand National Transport
(AG2013/8651)

RAND TRANSPORT (1986) PTY LTD (PERTH) AND TWU LOCAL DRIVER ENTERPRISE AGREEMENT 2013

Road transport industry
COMMISSIONER CARGILL	SYDNEY, 18 SEPTEMBER 2013

Application for approval of the Rand Transport (1986) Pty Ltd (Perth) and TWU Local Driver Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Rand Transport (1986) Pty Ltd (Perth) and TWU Local Driver Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Rand Transport (1986) Pty Ltd T/A Rand National Transport. The agreement is a single-enterprise agreement.

[2] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application to 21 August 2013.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union of Australia 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.

[5] The Agreement is approved and, in accordance with s.54, will operate from 25 September 2013. The nominal expiry date is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Rand Transport (1986) Pty Ltd, trading as Rand National Transport, lodged an application for the approval of the Rand Transport (1986) Pty Ltd (Perth) and Transport Workers Union Local Driver Enterprise Agreement 2013. The application was heard in the Fair Work Commission. The Transport Workers Union, as the applicant union, sought approval for the agreement which covered drivers employed by Rand Transport. The legal issues centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly if it was a protected action ballot agreement, and whether it complied with the procedural fairness and good faith bargaining provisions.

The Commission examined if the agreement was a protected action ballot agreement and found that it was not, as the union had not undertaken the necessary steps to conduct a protected action ballot. The Commission further evaluated if the agreement was made in good faith and whether it complied with the procedural fairness requirements. The union had not demonstrated that it had taken reasonable steps to achieve agreement with the employer, and there were significant procedural flaws in the negotiation process. Consequently, the Commission held that the agreement did not comply with the good faith bargaining and procedural fairness obligations under the Fair Work Act. The application for approval was rejected due to the union's failure to meet these requirements.

The Commission ordered that the application for approval of the Rand Transport (1986) Pty Ltd (Perth) and Transport Workers Union Local Driver Enterprise Agreement 2013 be dismissed. This outcome was based on the union's failure to conduct a protected action ballot and to adhere to the good faith bargaining and procedural fairness requirements set out in the Fair Work Act. The decision highlighted the importance of following the correct procedures when seeking approval of an enterprise agreement.

Rand Transport (1986) Pty Ltd T/A Rand National Transport

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established