[2] The issue requiring further consideration was an application by the parties pursuant to s.111(1)(q) of the Act for the Commission to "... correct, amend or waive any error or irregularity, whether in substance or form;" in relation to the employers failure to provide the required fourteen days in accordance with s.170LJ(3) of the Act. That subsection provides:

"(3) The employer must take reasonable steps to ensure that:

(a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and

(b) before any approval is given, the terms of the agreement are explained to all the persons."

[3] It is acknowledged and accepted by the parties that only seven days were provided as the agreement became available on the 8 September 2000 and the ballot was conducted on the 15 September 2000.

[4] Some complaints received in confidential correspondence to the Commission asserted that the employer only made the proposed agreement available 24 hours before the ballot and that a number of employees were not able to exercise their vote as they were absent from the sites at the relevant time. These claims were tested and put to the parties who went to the evidence provided to the Commission in the declarations. The declarations made by the parties were confirmed during the hearing and I have concluded that the evidence confirms that employees had access to the agreement for seven days.

[5] It was stated that the employees were informed in writing on 8 September 2000 that the ballot would be conducted on 15 September 2000. That advice also outlined some of the key parts of the proposed agreement. Copies of the proposed agreement were displayed in all depots and employees advised that they could access their own copy. Significant numbers of copies were made available at key location points. The ballot arrangements were then confirmed in separate site notices informing employees of depot information briefings at which time any remaining questions or queries in relation to the agreement were able to be addressed (exhibit Perth Bus 1). It was stated that this followed a long period of negotiations and the issuance of a number of draft copies of the agreement before the final copy was made available on 8 September 2000. For example an earlier draft provided on 22 August 2000 had been widely circulated and discussed. Because of the interest and apparently some controversy, it was argued that all employees were well aware of the offers and details of the negotiations.

[6] In the final days the only changes to the previously circulated draft agreements were concessions offered by the employer. It is submitted as a consequence, that employees had been fully informed of the terms of the agreement well before 8 September 2000. By implication even if, in the unlikely event, employees voted on the basis of the earlier proposals issued before 7 September 2000 they had voted to accept an agreement which had less benefits. However the parties argue there was no room for such error as the discussion and explanation was comprehensive and continuous.

[7] The parties decision to have the ballot on the 15 September 2000 was driven by the need to have a common date with other bus companies for the implementation of the 38 hour week which was to replace the previous 40 hour work arrangements. The employer was content to implement the reduced hours from a common date but was not prepared to do so without the acceptance by the union and employees of all the terms of the agreement. The employer, union and negotiating committee were all of the view that there was no benefit in having a longer period and that it was far more beneficial to implement the terms of the agreement in that regard. It was submitted that the site briefings and information sessions were more comprehensive than usual because of the intensity of interest and the long running nature of the negotiations. The parties emphasis at that time was on concluding the agreement and little consideration was then being given to their formal obligations under the Act particularly in relation to time limits.

[8] The ballot process although not without some flaws and difficulties provided employees with a reasonable opportunity to express their views and I am satisfied that if a very small number of employees were unable to exercise their choice that would not have altered the final result. In that regard I should note that the Act does not require the ballot for an agreement to be a secret ballot even though in many respects the ballot in this case provided those benefits.

[9] In consequence of the evidence and submissions I concluded that the substance of the requirements under s.170LJ(3) had been met by the parties even though they had not met the strict time limits contained in the subsection because of the extraordinary circumstances. I concluded that if the Commission was empowered under s.111(1)(q) to correct the irregularity that it should do so, as in all other respects the obligations had been met. I adjourned the matters to consider that issue and now confirm that in the context of the extraordinary circumstances applying here that the Commission has and should exercise the power of s.111(1). It has been long accepted that the powers under s.111(1) go beyond procedural issues and include substantial matters. As well it has been specifically confirmed that the Commission is able to vary the time limits under the Act where justified (Coldham and others; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1986] HCA 87; [64 ALR 215]). It is also consistent with the objects of the Act and Part VIB "... to facilitate the making and certifying ... of certain agreements ..." [see also Ross VP in Print P0442]

[10] The fourteen day requirement should of course normally be met as it provides a significant protection to employees. Indeed I consider nothing short of extraordinary circumstances would warrant the Commission accepting the alternative. Even in that circumstance the Commission would clearly need to be satisfied that the intent and substance of the s.170LJ(3) had been met and that the employer had taken necessary steps to provide access to and explanation of, the agreement.

[11] In the present case the employees would have been denied a significant and important advantage because of the timing of the introduction by the industry of the 38 hour week if the time had not been limited. Moreover there is little doubt that the terms of the agreement were well known to any interested employee because of the various activities, including the involvement of senior staff and the Managing Director in staff briefings. In short in all other respects the employer in this case has properly satisfied the requirements set down in s.170LJ(3) and should not because of the one failure be prevented from having the agreement certified.

[12] I accept the application and waive the obligation. I confirm my earlier conclusion that the agreement meets the tests under the Act and should be certified.

J. Uphill for the Chamber of Commerce and Industry of Western Australia on behalf of Perth

G. Ferguson for the Transport Workers' Union of Australia.

Printed by authority of the Commonwealth Government Printer