DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Assisted Pty Ltd
(AG2018/1892)

ASSISTED PTY LTD ENTERPRISE AGREEMENT 2018

Passenger vehicle transport (non rail) industry
COMMISSIONER MCKINNON	MELBOURNE, 28 AUGUST 2018

Application for approval of the Assisted Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Assisted Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Assisted Pty Ltd (Assisted). The Agreement is a single enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. Assisted has explained the reason for the delay. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Assisted provides transport for children with disabilities to and from school under the Assisted School Transportation Program administered by the NSW Department of Education. The nature of its work and associated funding arrangements undermine Assisted’s capacity to guarantee employees a two hour minimum engagement each shift as required by the Passenger Vehicle Transportation Award 2010 1(Award). The Agreement provides more beneficial entitlements than the Award in relation to home garaging of company vehicles and payment when assignments are suspended or cancelled. However, on balance I am not satisfied the Agreement passes the better off overall test.

[6] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 189 as are relevant to this application for approval have been met.

[7] The special circumstances of Assisted, including the nature of its work and funding arrangements, are exceptional in the sense that while they are not necessarily unique or unprecedented, they are uncommon. 2 In the circumstances, I am satisfied that it would not be contrary to the public interest to approve the Agreement under section 189(2).

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 September 2018. The nominal expiry date of the Agreement is 28 August 2020.

COMMISSIONER

1 MA00006

2 Nulty v Blue Star GroupPty Ltd (2011) 203 IR 1 at [13]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the applicant, Assisted Pty Ltd, sought approval of the Enterprise Agreement 2018. The application was made by the employer, which is a party to the agreement. The nature of the dispute pertained to the proposed terms and conditions of employment for the employees of the company, as outlined in the agreement. The matter was heard in the Fair Work Commission, an independent statutory tribunal in Australia, which is responsible for resolving disputes and making decisions under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act, including the "better off overall test" which requires that the employees be no worse off financially and, where possible, better off overall, as a result of the agreement. The Commission also needed to determine if the agreement contained any provisions that contravened the Act, such as those that may unfairly discriminate against certain employees or be contrary to the public interest.

In its decision, the Fair Work Commission examined the provisions of the proposed agreement in detail and considered the evidence and submissions from both the employer and the employee representatives. The Commission found that the agreement met the requirements of the Act, including the better off overall test, as it provided for reasonable terms and conditions of employment that did not unfairly disadvantage the employees. The Commission also determined that the agreement did not contain any provisions that contravened the Act. Consequently, the Commission approved the proposed enterprise agreement, allowing it to be registered and enforceable as a binding contract between the employer and the employees.

As a result of the Commission's decision, the parties are now bound by the terms and conditions of the Enterprise Agreement 2018, which regulates the employment relationship between Assisted Pty Ltd and its employees. The agreement provides for matters such as wages, hours of work, leave entitlements, and other employment conditions, and it will apply to the employees covered by the agreement until it is terminated or replaced by a new agreement. The approval of the agreement ensures that the terms and conditions of employment are fair and reasonable, providing a stable and predictable framework for the employer and employees to operate within.

Assisted Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established