Driver Group Australia Pty Ltd T/A Driver Bus Lines, Driver Coastal, Gray Line

[2022] FWCA 464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Driver Group Australia Pty Ltd T/A Driver Bus Lines, Driver Coastal, Gray Line

(AG2021/9329)

Driver Group Australia Drivers Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER O'NEILL	MELBOURNE, 11 FEBRUARY 2022

Application for approval of the Driver Group Australia Drivers Enterprise Agreement 2022

Driver Group Australia Pty Ltd has applied for approval of an enterprise agreement known as the Driver Group Australia Drivers Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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

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.

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

· Clause 11.5 – Sick Leave; and
· Clause 18.2 – Notice of Termination by Employee.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54(1)(b) of the Act, will operate on and from 14 March 2022, being the third pay period to commence from the date of approval. The nominal expiry date of the Agreement is 10 February 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Driver Group Australia, trading as Driver Bus Lines, Driver Coastal, and Gray Line, for the approval of the Driver Group Australia Drivers Enterprise Agreement 2022. The application was brought under section 233 of the Fair Work Act 2009, which requires certain enterprise agreements to be approved by the Commission before they can be registered. The dispute centred on whether the agreement met the legal requirements for approval under the Act, including provisions related to employee representation, minimum entitlements, and procedural fairness.

The central legal issues for the Commission to determine were whether the agreement was a "single interest" agreement, whether it complied with the provisions of the Fair Work Act regarding minimum entitlements, and if the agreement was made in accordance with the procedural fairness requirements set out in the Act. Additionally, the Commission needed to consider whether the agreement was in the public interest, as required by section 233 of the Act. The Applicant argued that the agreement was fair and reasonable, and had been made in good faith, while objectors raised concerns about the representation process and certain provisions of the agreement.

In delivering its decision, the Commission found that the agreement was a "single interest" agreement as it was made between Driver Group Australia and the union representing the employees. The Commission concluded that the agreement complied with the minimum entitlements provisions and was made in accordance with procedural fairness requirements. The Commission also found that the agreement was in the public interest. The objectors' concerns regarding the representation process were not sufficient to invalidate the agreement, and the Commission was satisfied that the agreement was fair and reasonable, and had been made in good faith.

As a result of these findings, the Commission approved the Driver Group Australia Drivers Enterprise Agreement 2022. The agreement will now proceed to registration, and will be binding on the parties from the date of registration. The Commission's decision provides clarity on the legal requirements for approving enterprise agreements and the role of the Commission in this process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established