Ventia Australia Pty Ltd
[2025] FWCA 1286
•17 APRIL 2025
| [2025] FWCA 1286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Ventia Australia Pty Ltd
(AG2025/775)
VENTIA (BASE SERVICES) NT ENTERPRISE AGREEMENT 2024
| Hospitality industry | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 17 APRIL 2025 |
Application for approval of the Ventia (Base Services) NT Enterprise Agreement 2024
This decision deals with an application made for approval of an enterprise agreement known as the Ventia (Base Services) NT Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ventia Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
NERR
The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. The difference in the name was a change in the year, reflective of the time taken in the Agreement making process, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]
Casual Employees
Noting there was a large contingent of casual staff voting on the Agreement, I sought further information from the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[2] The Applicant provided further information and a redeclared ballot result from the Balloting agent. On the basis of the information before me, which I accept, I found that three casual employees should not have been given an opportunity to vote, as they were not engaged (within the meaning of McDermott), during the access period or on the day of the vote. Further, I find that only one of those employees cast a vote, and regardless of how that person voted, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Hence, having regard to the submissions of the Applicant and the evidence before me, I find that this error constitutes a minor procedural and/or technical error in accordance with s.188(2) of the Act.[3] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[4] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[5]
Delegates Rights Term
The Agreement does not contain a delegate’s rights term that in all respects, is no less favourable than the modern award. However, noting clause 36 of the Agreement provides for the more beneficial parts of Delegates Rights Terms to apply when read in conjunction with the Award, I am satisfied the more beneficial entitlements will prevail where there is an inconsistency between the Agreement and the Award.
Undertakings
The Applicant has provided written undertakings. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the undertakings.
Substantial Change
The United Workers Union (UWU) made submissions that the undertakings proposed in respect of the number and nature of deficiencies they address, “would result in a substantial and fundamental changes”[6] to the proposed Agreement, they do not meet the requirements of the Act[7] and they should not be accepted by the Commission. The Full Bench considered the issue of what might constitute a substantial change in CFMEU v Kaeffer Integrated Services Pty Ltd[8] in which the Bench found:
“[40] In our view, simply increasing the quantum of various benefits will not ordinarily result in “substantial changes” for the purposes of s 190(3). It seems to us that the legislative concern is to avoid imposing on employee arrangements that they have not approved; employees are not likely to object to higher monetary amounts...”
The nature of the test in section 190(3)(b) of the FW Act was also considered in some detail in CFMMEU v C&H Acquisition Pty Ltd.[9] The Full Bench noted that all changes to an agreement, in the context of section 190, were of substance and materiality. That is the point of them.[10] However when read in context, “substantial” was to be read “in the sense that the undertaking would change the essence of the agreement”.[11] Given the protective nature of section 190(3)(b) and its purpose (as identified in Kaefer):
“Whether accepting an undertaking would result in “substantial changes” to an agreement is not assessed simply by examining the number of undertakings given or the number of resulting changes. “Substantial changes” does not mean a numerically large number of changes to the agreement simpliciter. In the context of the Act and the agreement making provisions of Part 2-4, it is the quality of the changes with which the word “substantial” is concerned. It follows, in our view, that the word ‘substantial’ in s.190(3)(b) signifies a degree or quality of change that is substantial in the sense that it would alter the essence or nature of the agreement. It is concerned with change that is transformative of the agreement so as to raise concern that change may have affected the way in which employees chose to vote in approving the agreement.”[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.190(3) of the Act, I accept the undertakings.
Subject to the undertakings referred to above, having regard to the Statement of Principles,[13] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Union Covered
The UWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.
Better Off Overall Test
The UWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions and on the basis of the undertakings given and the material before me, I am satisfied that the Agreement passes the BOOT.
Conclusion
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 July 2028.
DEPUTY PRESIDENT
[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].
[2] Kmart Australia Limited v Retail and Fast Food Workers Union Incorporated & Shop, Distributive and Allied Employees Association and Another [2019] FWCFB 75992 (Kmart); Dermott Australia Pty Ltd v Australian Workers' Union, The & "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2016] FWCFB 2222 (McDermott).
[3] Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].
[4] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.
[5] Ibid.
[6] Submissions of the United Workers Union dated 3 April 2025 at [20]-[24].
[7] s.190(3) of the Act.
[8] Construction, Forestry, Mining and Energy Union – Western Australian Branch [2017] FWCFB 5630; (2017) 271 IR 273 at [40] (Kaefer).
[9] Construction, Forestry, Mining and Energy Union v C&H Acquisition Pty Ltd T/A C&H Acquisition [2020] FWCFB 3134; (2020) 296 IR 294 at [27]-[45].
[10] Ibid at [36].
[11] Ibid at [37].
[12] Ibid. See also [39].
[13] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
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