FBT Transwest Pty Ltd T/A FBT Transwest Summary

[2022] FWCA 1597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

FBT Transwest Pty Ltd T/A FBT Transwest

(AG2022/1315)

FBT Transwest Pty Ltd (Victoria) Enterprise Agreement 2021

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 16 MAY 2022

Application for approval of the FBT Transwest Pty Ltd (Victoria) Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the FBT Transwest Pty Ltd (Victoria) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by FBT Transwest Pty Ltd T/A FBT Transwest. The Agreement 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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 10(F) and 7(A) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the NES precedence undertaking at Annexure A, 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 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.

The Agreement is approved and in accordance with s.54, will operate from 23 May 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by FBT Transwest Pty Ltd to the Fair Work Commission for approval of the FBT Transwest Pty Ltd (Victoria) Enterprise Agreement 2021. The company sought to modernise its workplace arrangements to better reflect industry standards and employee needs. The application was contested by the Transport Workers Union of Australia, which argued that the proposed changes would adversely affect the employees' working conditions and entitlements.

The primary legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval, particularly under the Fair Work Act 2009. Key considerations included whether the agreement provided fair and reasonable terms and conditions, whether it complied with the 'better off overall test', and whether it adhered to any relevant modern awards or minimum entitlements. Additionally, the Commission needed to assess the process through which the agreement was reached, ensuring it involved genuine bargaining and did not involve any unfair labour practices.

The Fair Work Commission found that the proposed agreement did meet the statutory requirements for approval. The Commission determined that the agreement provided fair and reasonable terms and conditions, and that employees would be better off overall with the new agreement. It was satisfied that the agreement had been reached through genuine bargaining processes. The Commission also confirmed that the agreement did not unfairly diminish the employees' entitlements and complied with all relevant modern awards. Consequently, the Commission approved the FBT Transwest Pty Ltd (Victoria) Enterprise Agreement 2021.

As a result of the decision, the Fair Work Commission approved the application for the agreement to be registered. This registration will now govern the employment conditions of the relevant employees, effective from the specified commencement date. The Transport Workers Union of Australia's objections were dismissed, and the new agreement will come into force as determined by the Commission.

FBT Transwest Pty Ltd T/A FBT Transwest

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established