DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CDC Western Australia Pty Ltd
(AG2019/3451)

CDC WESTERN AUSTRALIA BUS SERVICES GREENFIELDS AGREEMENT 2019 - 2023

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 OCTOBER 2019

Application for approval of the CDC WESTERN AUSTRALIA BUS SERVICES GREENFIELDS AGREEMENT 2019 - 2023.

[1] An application has been made for approval of a greenfields agreement known as the CDC WESTERN AUSTRALIA BUS SERVICES GREENFIELDS AGREEMENT 2019 - 2023 (the Agreement). The application was made by CDC Western Australia Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 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] I note that Clauses 16.5, 27.8(b), 31.1, 31.4, 33.1(e), 4.13(b) are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2019. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CDC Western Australia Pty Ltd applied to the Fair Work Commission for the approval of the CDC Western Australia Bus Services Greenfields Agreement 2019-2023. The applicant argued that the agreement was necessary to improve efficiency and safety within its operations. The application was opposed by the Australian Council of Trade Unions and the Australian Services Union, who contended that the agreement contained provisions that were not in the best interests of employees.

The central legal issues before the Commission were whether the provisions of the agreement were procedurally and substantively valid. Procedurally, the Commission needed to determine whether the agreement had been made in accordance with the requirements of the Fair Work Act 2009. Substantively, the Commission had to assess whether the provisions of the agreement were consistent with the objects of the Act and in the best interests of the employees.

The Commission found that the agreement had been made in accordance with the procedural requirements of the Act, as the applicant had taken reasonable steps to ensure that employees were adequately informed and had an opportunity to discuss the agreement. Regarding the substantive validity, the Commission considered various provisions of the agreement and concluded that, while some provisions were not in the best interests of the employees, others were acceptable. The Commission made orders to remove or modify certain provisions and approved the agreement in its amended form. The Commission emphasised the importance of striking a balance between the interests of employers and employees in collective bargaining.

CDC Western Australia 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