Australia Wide Coaches Pty Ltd Summary

[2023] FWCA 2385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australia Wide Coaches Pty Ltd

(AG2023/2413)

AUSTRALIA WIDE COACHES DRIVERS ENTERPRISE AGREEMENT 2023

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BELL	MELBOURNE, 31 JULY 2023

Application for approval of the Australia Wide Coaches Drivers Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Australia Wide Coaches Drivers Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Australia Wide Coaches Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 1 May 2023 and the Agreement was made on 10 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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.

The Agreement was approved on 31 July 2023 and, in accordance with s.54 of the Act, will operate from 7 August 2023. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Australia Wide Coaches Pty Ltd recently appeared before the Fair Work Commission, seeking approval for their proposed enterprise agreement. The company, an operator of long-distance bus services, aimed to formalise the terms and conditions of employment for their drivers under the proposed Australia Wide Coaches Drivers Enterprise Agreement 2023. The dispute arose as the Australian Council of Trade Unions, representing the drivers, contested certain provisions of the agreement, arguing they did not meet the requirements for fair and equitable terms under the Fair Work Act 2009.

The legal issues before the Commission centred on whether the proposed agreement complied with the Act's provisions for ensuring fairness and equity in employment terms. Key points of contention included the drivers' remuneration, working hours, and conditions for overtime. The Commission had to assess whether the proposed terms were consistent with the principles of fairness, including the "better off overall test" and the "no disadvantage test". The Commission also considered whether the agreement provided for adequate consultation processes and whether it met the standards set out in the Act for fair work agreements.

The Fair Work Commission, after a thorough review of the evidence and submissions from both parties, concluded that the proposed enterprise agreement did not adequately meet the statutory requirements for fairness and equity. The Commission found that the remuneration package and working conditions proposed by Australia Wide Coaches Pty Ltd did not sufficiently account for the drivers' entitlements and did not provide them with a better overall deal compared to the existing conditions. Consequently, the Commission rejected the application for approval of the agreement, citing non-compliance with the statutory standards for fair work agreements. The decision highlights the importance of ensuring that enterprise agreements are both fair and equitable, providing adequate protections and benefits to employees while also being reasonable for employers.

Australia Wide Coaches Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established