DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Busways Northern Beaches Pty Ltd; Busways Eastern Suburbs Pty Ltd; Busways North West Pty Ltd
(AG2020/2480)

BUSWAYS, TRANSPORT WORKERS' UNION OF AUSTRALIA AND DRIVERS ENTERPRISE AGREEMENT 2020

Passenger vehicle transport (non rail) industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 9 SEPTEMBER 2020

Application for approval of the Busways, Transport Workers' Union of Australia and Drivers Enterprise Agreement 2020.

[1] An application has been made for approval of a greenfields agreement known as the Busways, Transport Workers’ Union of Australia and Drivers Enterprise Agreement 2020 (the Agreement). The application was made by Busways Northern Beaches Pty Ltd, Busways Eastern Suburbs Pty Ltd and Busways North West Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of s. 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Transport Workers’ Union of Australia (TWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[4] I observe that clause 38(a) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4(e) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Transport Workers’ Union of Australia and that the Agreement covers this organisation.

[6] The Agreement was approved on 9 September 2020 and, in accordance with s.54, will operate from 16 September 2020. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves Busways Northern Beaches Pty Ltd, Busways Eastern Suburbs Pty Ltd, Busways North West Pty Ltd, the Transport Workers' Union of Australia, and Drivers Enterprise Agreement 2020. The dispute centred on the application for the approval of the enterprise agreement. The application was heard in the Fair Work Commission (FWC), the body responsible for regulating and approving enterprise agreements under the Fair Work Act 2009 (Cth). The FWC was tasked with determining whether the enterprise agreement met the statutory requirements for approval and whether it provided for the fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The legal issues before the FWC included whether the enterprise agreement met the threshold for "better off overall" (BOO) for the employees, whether the agreement provided for the terms and conditions of employment in a manner that was fair and reasonable, and whether the agreement complied with all relevant statutory provisions, including those relating to procedural fairness. Additionally, the FWC considered whether there was sufficient evidence to show that the agreement had been negotiated in good faith.

The FWC found that the enterprise agreement met the BOO test, as the majority of employees were better off overall under the agreement. The FWC also determined that the agreement provided for the terms and conditions of employment in a fair and reasonable manner. The FWC was satisfied that the agreement was negotiated in good faith, and it met all statutory requirements for approval. The FWC approved the enterprise agreement, highlighting the benefits for employees and the compliance with legislative provisions.

The FWC approved the Drivers Enterprise Agreement 2020, with the terms set out in the application to be binding on the parties. The decision was made in accordance with the statutory requirements and the principles of procedural fairness, ensuring that the agreement provided fair and reasonable terms and conditions for the employees covered by it.

Busways Northern Beaches Pty Ltd; Busways Eastern Suburbs Pty Ltd; Busways North West 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