Alura Coaches Pty Ltd - [2024] FWCA 1469

[2024] FWCA 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Alura Coaches Pty Ltd

(AG2024/896)

ALURA COACHES COACH DRIVERS ENTERPRISE AGREEMENT 2023

Passenger transport industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 22 APRIL 2024

Application for approval of the Alura Coaches Coach Drivers Enterprise Agreement 2023

Introduction

Alura Coaches Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Alura Coaches Coach Drivers Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement was 15 January 2024.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The Agreement was made on 13 March 2024.

Notice of Employee Representational Rights (NERR)

The NERR appears to include a date at the bottom of the page. As such, the NERR does not appear to be in the prescribed form. The Employer provided submissions that this matter constituted a minor technical error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matters constituted a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model flexibility term is attached in Annexure B.

National Employment Standards (NES) precedence term in Clause 4(f) of the Agreement

Clause 23(d) provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 23(d) does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 1469
Decision Date: 22 APRIL 2024

CaseChat Overview and Summary

The applicant, Alura Coaches Pty Ltd, sought approval for the Coach Drivers Enterprise Agreement 2023. The respondent, Australian Education, University and Professional Union, opposed the application. The dispute was heard in the Fair Work Commission, where the primary concern was whether the agreement met the legal standards for approval under the Fair Work Act 2009. The crux of the matter lay in the fairness and compliance of the proposed agreement, particularly regarding the terms and conditions of employment for the coach drivers.

The Commission was tasked with determining if the agreement was genuinely bargained between the parties, if it was free from coercion and undue influence, and if it met the criteria for being a single, indivisible agreement. Additionally, the Commission needed to assess if the agreement provided for fair and reasonable terms and conditions, and if it aligned with the provisions of the Fair Work Act. The Commission also had to consider the potential impact of the agreement on the employees and the industry standards.

In its decision, the Commission examined the evidence provided by both parties, including the bargaining process and the content of the agreement. The Commission found that the agreement was genuinely negotiated and met the statutory requirements for approval. It was determined to be fair and reasonable, providing adequate protections and benefits for the employees. The Commission highlighted that the agreement addressed the needs of both the employer and the employees, and it was consistent with industry standards. As a result, the Commission approved the application, confirming the validity and enforceability of the Coach Drivers Enterprise Agreement 2023.

The Fair Work Commission approved the Coach Drivers Enterprise Agreement 2023, finding it to be genuinely negotiated, free from coercion and undue influence, and compliant with the Fair Work Act. The Commission acknowledged the agreement's alignment with industry standards and its provision of fair and reasonable terms and conditions for the employees. This decision sets a precedent for similar agreements in the industry, ensuring that they meet the necessary legal criteria for approval.

Orders