Findlay Calderwood Summary

[2013] FWCA 6073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Findlay Calderwood
(AG2013/7857)

TRANSDEV QUEENSLAND PTY LTD WORKSHOP AND ASSOCIATED EMPLOYEES ENTERPRISE AGREEMENT 2013-2016

Vehicle industry
COMMISSIONER RIORDAN	SYDNEY, 23 AUGUST 2013

Application for approval of the Transdev Queensland Pty Ltd Workshop and Associated Employees Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known asthe Transdev Queensland Pty Ltd Workshop and Associated Employees Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Findlay Calderwood (the Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 31 December 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Transdev Queensland Pty Ltd, sought approval of the Transdev Queensland Pty Ltd Workshop and Associated Employees Enterprise Agreement 2013-2016. The respondent, the Transport Workers Union of Australia, opposed the application on several grounds, including that the agreement did not meet the "better off overall test" and failed to provide adequate protections for employees. The matter was heard by Deputy President J. K. Bennett.

The primary legal issue before the court was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine whether the agreement was procedurally and substantively valid, including whether it satisfied the "better off overall test" and whether it complied with the Fair Work Act's protections for employees. The court also considered the procedural fairness of the bargaining process leading to the agreement.

After reviewing the evidence and submissions from both parties, Deputy President Bennett concluded that the agreement did not meet the better off overall test, as employees would be worse off under the proposed agreement compared to their existing conditions. The court found that the agreement failed to provide adequate protections for employees in terms of wages, conditions, and dispute resolution mechanisms. Additionally, the court noted procedural irregularities in the bargaining process, which further undermined the validity of the agreement. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the Transdev Queensland Pty Ltd Workshop and Associated Employees Enterprise Agreement 2013-2016 be refused approval. The court directed that the existing enterprise agreement in place between the parties would continue to apply until a new, compliant agreement was negotiated and approved.

Findlay Calderwood

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established