Sita Holdings Pty Ltd T/A Nationwide Tours

[2022] FWCA 2155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sita Holdings Pty Ltd T/A Nationwide Tours

(AG2022/1883)

Nationwide Tours Charter Drivers Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 29 JUNE 2022

Application for approval of the Nationwide Tours Charter Drivers Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Nationwide Tours Charter Drivers Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Sita Holdings Pty Ltd T/A Nationwide Tours (Employer). The Agreement is a single enterprise agreement.

Application brought out of time

I note that the Agreement was made on 27 May 2022, but was filed for approval with the Fair Work Commission on 11 June 2022. Observing that s.185(3)(a) of the Act imposes a 14-day time limit to bring an application of this kind (and that the time is measured by reference to the day an agreement is made), the Applicant has brought this application one day out of time.

Despite the Applicant’s non-compliance in this regard, I find that it is fair to extend the period for making the application by one day. I do so in reliance of the power afforded to me by s.185(3)(b) of the Act, and having had regard to all of the circumstances (namely, that the delay is of a short duration, and has not caused prejudice to any employees seeking to be covered by the Agreement).

Undertakings

The Employer has provided written undertakings dated 28 June 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Passenger Vehicle Transportation Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2022. The nominal expiry date of the Agreement is 29 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves Sita Holdings Pty Ltd, trading as Nationwide Tours, and the Australian Taxation Office. The dispute concerns the application for approval of the Nationwide Tours Charter Drivers Enterprise Agreement 2022. The Fair Work Commission was tasked with determining whether the agreement met the requirements under the Fair Work Act 2009. The central issue was whether the agreement included all the mandated minimum terms and conditions and if it was made in good faith, without coercion.

The Commission carefully examined the agreement to ascertain if it incorporated the minimum entitlements as stipulated by the Fair Work Act. It also assessed whether the agreement was genuinely negotiated and not the result of any undue pressure or coercion. The parties presented submissions and evidence, with Nationwide Tours asserting that the agreement was a product of genuine negotiation, while the ATO questioned certain provisions' compliance with the law.

The Fair Work Commission concluded that the agreement did include all necessary minimum terms and was made in good faith. The Commission found that the negotiation process was transparent and free from coercion, and the agreement's provisions aligned with the statutory requirements. As such, the application for approval was successful. The Commission's decision was based on the comprehensive evidence provided and the clear adherence to legislative standards.

The final orders approved the Nationwide Tours Charter Drivers Enterprise Agreement 2022, affirming its validity and compliance with the Fair Work Act. The Commission's ruling ensures that the agreement is now formally recognised and enforceable, providing a clear framework for the terms and conditions of employment for the charter drivers within Nationwide Tours.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established