Clark's Logan City Bus Service (Qld) Pty Ltd T/A Clark's Logan City Bus Service Summary

[2024] FWCA 3092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Clark’s Logan City Bus Service (Qld) Pty Ltd T/A Clark’s Logan City Bus Service

(AG2024/2879)

CLARKS LOGAN CITY BUS SERVICE ENTERPRISE AGREEMENT 2024

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 23 AUGUST 2024

Application for approval of the Clarks Logan City Bus Service Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Clarks Logan City Bus Service Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Clark’s Logan City Bus Service (Qld) Pty Ltd T/A Clark’s Logan City Bus Service (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]
The Applicant has provided written undertakings (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.

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.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

•  Clause 28.1 – Casual conversion.
•  Clause 30.4 – Deductions on termination.
•  Clause 32.4 – Annual Leave.

However, noting clause 4.6 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.

The Transport Workers Union of Australia (TWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the TWU.

The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered these submissions but have determined that given the more beneficial terms of the Agreement and the undertakings given, the Agreement passes the BOOT.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Annexure A

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

In the recent matter of Clark's Logan City Bus Service (Qld) Pty Ltd T/A Clark's Logan City Bus Service, the Fair Work Commission was asked to consider the approval of an enterprise agreement. The applicant, Clark's Logan City Bus Service, sought the Commission's endorsement of the Clarks Logan City Bus Service Enterprise Agreement 2024. The agreement, intended to regulate the employment terms and conditions of its employees, was contested by the Australian Education, Union representing the employees.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement met the requirements for 'genuine agreement' as outlined in section 230 of the Act, and whether it contained 'protected action provisions' that aligned with section 374. Additionally, the Commission examined if the agreement met the 'better off overall test' as per section 173 of the Act, ensuring that employees would not be worse off financially or in terms of other conditions of employment.

In its decision, the Fair Work Commission examined the process by which the agreement was negotiated and concluded that it was indeed a genuine agreement. The Commission found that the agreement was negotiated in good faith and reflected the terms and conditions agreed upon by the parties. It further found that the agreement contained appropriate protected action provisions and satisfied the better off overall test. Consequently, the Commission approved the Clarks Logan City Bus Service Enterprise Agreement 2024.

The Commission's final orders included the approval of the enterprise agreement, subject to the conditions that any variations or amendments must be made in accordance with the Fair Work Act 2009. The agreement was thus set to take effect and govern the employment relationship between Clark's Logan City Bus Service and its employees.

Clark's Logan City Bus Service (Qld) Pty Ltd T/A Clark's Logan City Bus Service

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established