DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Buslink NT Pty Ltd
(AG2021/4778)

BUSLINK NT PTY LTD, ALICE SPRINGS PTY LTD AND TRANSPORT WORKERS’ UNION ENTERPRISE AGREEMENT 2021 – 2025

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 MAY 2021

Application for approval of the Buslink NT Pty Ltd, Alice Springs Pty Ltd and Transport Workers’ Union Enterprise Agreement 2021 - 2025.

[1] An application has been made for approval of an enterprise agreement known as the Buslink NT Pty Ltd, Alice Springs Pty Ltd and Transport Workers’ Union Enterprise Agreement 2021 - 2025 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 27 May 2021. The nominal expiry date of the Agreement is 19 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court was an application for the approval of an enterprise agreement between Buslink NT Pty Ltd, Alice Springs Pty Ltd, and the Transport Workers’ Union, covering the period from 2021 to 2025. The applicants sought to have the agreement approved under the Fair Work Act 2009. The respondents, including the Buslink NT Pty Ltd employees, argued against the approval of certain clauses within the agreement.

The primary legal issue for the court was to determine whether the contested clauses of the enterprise agreement were in compliance with the statutory requirements of the Fair Work Act 2009. This involved assessing whether the agreement was genuinely bargained, and if it met the criteria for being "fair and portable". The court had to consider whether the agreement provided for reasonable terms and conditions and if it was made in good faith.

In its decision, the court meticulously examined each clause in question, weighing the arguments presented by both parties. The court found that while most of the clauses were in line with the statutory requirements, certain provisions concerning shift penalties and employee entitlements did not meet the necessary standards. The court emphasised the importance of good faith bargaining and the need for fair terms that adequately protect employee rights. Consequently, the court decided to disallow the approval of the agreement as it stood, directing the parties to renegotiate those specific clauses to ensure they complied with the Fair Work Act 2009.

The final orders of the court were that the enterprise agreement, as it stood, was not to be approved. The court directed the parties to renegotiate the clauses concerning shift penalties and employee entitlements to meet the statutory requirements. The court set a timeline for the renegotiation process and mandated that any revised agreement would need to be resubmitted for approval.

Buslink NT Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established