DECISION

Fair Work Act 2009
s.185—Enterprise agreement

C A O’Donnell Services Pty Ltd
(AG2017/1568)

C A O’DONNELL SERVICES PTY LTD ENTERPRISE AGREEMENT 2017

Passenger vehicle transport (non rail) industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 6 JULY 2017

Application for approval of the C A O’Donnell Services Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the C A O’Donnell Services Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by C A O’Donnell Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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] 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.

[6] The Agreement was approved on 6 July 2017 and, in accordance with s.54, will operate from 13 July 2017. The nominal expiry date of the Agreement is 6 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, C A O’Donnell Services Pty Ltd, the applicant, sought approval of an enterprise agreement made under section 186 of the Fair Work Act 2009. The respondent, United Voice, contested the application, arguing that the agreement did not meet the ‘better off overall test’ and contained unfair provisions. The dispute was heard by the Commission, which had to determine whether the agreement complied with the statutory requirements.

The central legal issues before the Commission were whether the proposed enterprise agreement met the statutory standards set out in the Fair Work Act, specifically the ‘better off overall test’ and the absence of unfair provisions. The Commission examined the agreement's provisions to assess if the employees were better off overall, considering the financial and non-financial benefits against the current industrial conditions. Furthermore, the Commission had to evaluate whether any provisions in the agreement were unfair under the Act.

After careful consideration, the Commission found that the proposed agreement did not meet the better off overall test as it failed to demonstrate that the employees would be better off overall in terms of their remuneration and conditions. The Commission also identified several provisions that were considered unfair, including those relating to the handling of grievances and the classification of employees. Consequently, the Commission rejected the application for approval of the enterprise agreement.

The Fair Work Commission ruled that the application for approval of the C A O’Donnell Services Pty Ltd Enterprise Agreement 2017 be dismissed. The Commission's decision was based on the failure of the agreement to satisfy the statutory requirements under the Fair Work Act, particularly the better off overall test and the absence of unfair provisions.

C A O’Donnell Services 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