Assisted Pty Ltd

[2018] FWCA 4954

[2018] FWCA 4954

FAIR WORK COMMISSION

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]

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