CDC Tullamarine Pty Ltd T/A CDC Tullamarine

[2019] FWCA 447

[2019] FWCA 447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CDC Tullamarine Pty Ltd T/A CDC Tullamarine
(AG2018/6740)

CDC TULLAMARINE BUS DRIVER ENTERPRISE AGREEMENT 2018-2021

Passenger vehicle transport (non rail) industry
COMMISSIONER LEE	MELBOURNE, 25 JANUARY 2019

Application for approval of the CDC Tullamarine Bus Driver Enterprise Agreement 2018- 2021.

[1] An application has been made for approval of an enterprise agreement known as the CDC Tullamarine Bus Driver Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CDC Tullamarine Pty Ltd T/A CDC Tullamarine. The Agreement is a single enterprise agreement.

[2] The Employer 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.

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

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 35.1 – Family and Domestic Violence Leave;

● Clause 39(e)(ii) – Notice of Termination;

● Clause 32.1 – Annual Leave.

However, noting clause Clause 7 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.

[7] I note that clause 23.3 of the Agreement provides that in the event an Employee is terminated, the Employer shall immediately pay all moneys due to the Employee within 24 hours of termination, provided the Employee returns all outstanding property of the Employer. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 February 2019. The nominal expiry date of the Agreement is 31 December 2021.

.COMMISSIONER

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Annexure A