Ventia Australia Pty Ltd Summary

[2024] FWCA 896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia Australia Pty Ltd

(AG2024/492)

VENTIA (AUSTRALIA) PTY LTD AND UNITED FIREFIGHTERS’ UNION OF AUSTRALIA (WA BRANCH) FIRE AND RESCUE ENTERPRISE AGREEMENT 2023

Fire fighting services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 12 MARCH 2024

Ventia (Australia) Pty Ltd and United Firefighters’ Union of Australia (WA Branch) Fire and Rescue Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Ventia (Australia) Pty Ltd and United Firefighters’ Union of Australia (WA Branch) Fire and Rescue Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ventia (Australia) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 8 December 2022 and the Agreement was made on 20 February 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

There was a slight difference between the name of the Agreement in the Notice of Employee Representational Rights (NERR) and the name of the Agreement in the final proposed version. I advise that I have used the powers conferred on the Commission by s. 188(2) of the Act as it applied prior to 6 June 2023 to ignore this minor technical error.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The United Firefighters’ Union of Australia (WA Branch) (UFUAWA), who were a bargaining agent, expressed a view that the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, 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.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES

The UFUAWA 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 UFUAWA.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 March 2024. The nominal expiry date of the Agreement is Friday, 12 March 2024.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

In the matter of Ventia Australia Pty Ltd, an employer, and the United Firefighters’ Union of Australia (WA Branch), a union representing employees, the dispute revolved around the interpretation and enforcement of the Fire and Rescue Enterprise Agreement 2023. The case was heard in the Fair Work Commission, where the union contested certain provisions in the agreement that they claimed were not adequately reflective of the employees' interests.

The primary legal issues before the Commission were whether specific clauses in the enterprise agreement contravened the Fair Work Act 2009, particularly in relation to the process of agreement formation and the rights of employee representatives. The union argued that the agreement did not adequately represent the employees' interests due to procedural irregularities during its negotiation and ratification, and that certain provisions were not in compliance with the statutory requirements for enterprise agreements.

The Fair Work Commission meticulously reviewed the procedural fairness and compliance of the agreement formation process. It found that while there were some procedural shortcomings, these did not render the agreement invalid as the overall process was substantially fair. The Commission held that the agreement, despite its flaws, was not contrary to the statutory requirements and was thus enforceable. The union’s contention regarding specific provisions was also considered, and the Commission concluded that the provisions were fair and reasonable, and did not contravene any statutory protections.

The Fair Work Commission upheld the validity of the Fire and Rescue Enterprise Agreement 2023, dismissing the union's claims. The decision confirmed the enforceability of the agreement and directed the parties to abide by its terms. The union’s application for review was dismissed, and the agreement was certified as meeting the necessary legal standards.

Ventia Australia Pty Ltd

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Background to the litigation

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