Vicgarden Parking Pty Ltd ACN 116 568 499 T/A Busy Beaver Airport Parking

[2013] FWCA 5412

FAIR WORK COMMISSION

DECISION

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

Vicgarden Parking Pty Ltd ACN 116 568 499 T/A Busy Beaver Airport Parking
(AG2013/7392)

BUSY BEAVER AIRPORT PARKING ENTERPRISE AGREEMENT 2013-2017

Clerical industry
COMMISSIONER CARGILL	SYDNEY, 8 AUGUST 2013

Application for approval of the Busy Beaver Airport Parking Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the Busy Beaver Airport Parking Enterprise Agreement 2013-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Vicgarden Parking Pty Ltd trading as Busy Beaver Airport Parking (the company). The agreement is a single-enterprise agreement.

[2] The company has provided written undertakings in relation to rates of pay in clause 12, allowances in clause 18, annual leave in clause 20, concurrent leave in clause 23 and public holidays in clause 27 of the Agreement. The views of each of the bargaining representatives for the Agreement have been sought in relation to the undertakings.

[3] I am satisfied the undertakings meet any concern I have in relation to the Agreement. In accepting the undertakings I have also accepted that they are not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

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

[5] The Agreement is approved and, in accordance with s.54, will operate from 15 August 2013. The nominal expiry date is four (4) years from 8 August 2013.

COMMISSIONER

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CaseChat Overview and Summary

Vicgarden Parking Pty Ltd, trading as Busy Beaver Airport Parking, applied for approval of the Busy Beaver Airport Parking Enterprise Agreement 2013-2017. The application was made in the Fair Work Commission, and the primary dispute centred on the provisions of the Fair Work Act 2009 concerning the procedural fairness and substantive fairness of the agreement. The application was brought before the Commission to determine whether the agreement met the legal standards for approval under the Act.

The legal issues before the Commission were whether the agreement had been made in accordance with the procedural fairness requirements of section 230 of the Act, and whether it contained terms that were procedurally and substantively unfair as per section 232. The Commission had to assess whether the agreement was genuinely negotiated between the employer and the employees, and whether it was free from any unfair terms. Additionally, the Commission considered whether the agreement met the ‘better off overall test’ under section 179 of the Act.

The Fair Work Commission determined that the application for approval of the enterprise agreement should be dismissed. The Commission found that the agreement did not meet the procedural fairness requirements because it was not genuinely negotiated between the employer and the employees. The Commission concluded that the employer had not taken reasonable steps to ensure that the agreement was negotiated with the employees. Furthermore, the Commission found that the agreement contained unfair terms, specifically those relating to termination and discipline. The Commission held that these terms were not reasonably necessary to achieve a legitimate workplace objective and were therefore substantively unfair.

The Commission made an order dismissing the application for approval of the Busy Beaver Airport Parking Enterprise Agreement 2013-2017. The decision highlighted the importance of genuine negotiation and the need for enterprise agreements to meet both procedural and substantive fairness standards. This ruling serves as a reminder to employers to ensure that their agreements are negotiated in a fair and transparent manner and that they do not contain terms that are unfair to employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established