Cole Bus Group Pty Ltd T/A Coles Coaches

[2023] FWCA 2062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cole Bus Group Pty Ltd T/A Coles Coaches

(AG2023/2059)

COLE BUS GROUP PTY LTD ENTERPRISE AGREEMENT 2023

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 5 JULY 2023

Application for approval of the Cole Bus Group Pty Ltd Enterprise Agreement 2023

Introduction

Cole Bus Group Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Cole Bus Group Pty Ltd Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 13 June 2023.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 July 2023. The nominal expiry date of the Agreement is 1 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Cole Bus Group Pty Ltd, trading as Coles Coaches, applied for approval of the Cole Bus Group Pty Ltd Enterprise Agreement 2023. The applicants, Cole Bus Group Pty Ltd and its registered union, the Transport Workers Union of Australia, sought the Fair Work Commission’s approval of the agreement under the Fair Work Act 2009. The application was opposed by a number of individuals who were employees of the company. The dispute before the court was primarily about whether the agreement met the criteria for approval as set out in the Fair Work Act.

The central legal issues revolved around whether the enterprise agreement provided for the mandatory terms, was free from prohibited content, and was made in good faith. The applicants argued that the agreement was fairly negotiated, contained no prohibited content, and provided for all the mandatory terms. The respondents contended that the agreement failed to meet certain mandatory provisions, contained prohibited content, and was not made in good faith.

The Fair Work Commission considered the evidence and submissions presented by both parties. It found that the agreement did indeed provide for the mandatory terms, was free from prohibited content, and was made in good faith. The Commission noted that while there were some concerns raised by the respondents, these did not sufficiently undermine the overall fairness of the agreement. Consequently, the Commission approved the Cole Bus Group Pty Ltd Enterprise Agreement 2023. The Commission made an order approving the agreement, which is to be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established