Greyhound Australia Pty Ltd - [2024] FWCA 682

[2024] FWCA 682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Greyhound Australia Pty Ltd

(AG2023/2853)

GREYHOUND AUSTRALIA ENTERPRISE AGREEMENT 2023

Passenger vehicle transport (non rail) industry
COMMISSIONER MATHESON	SYDNEY, 21 FEBRUARY 2024

Application for approval of the Greyhound Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Greyhound Australia Enterprise Agreement 2023 (Agreement). The application was made by Greyhound Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Applicant is the employer covered by the Agreement and is a bargaining representative for the purposes of s.185(1) of the Act. The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A indicates that the notification time for the Agreement was 22 February 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 to the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in relation to genuine agreement in force immediately prior to 6 June 2023.

The Transport Workers’ Union of Australia is a bargaining representative for the Agreement. There are also 10 employee bargaining representatives, including Mr Warren Lang who opposed approval of the Agreement. Mr Lang filed a Form F18A indicating that he did not support approval of the Agreement on a number of grounds which are dealt with in this decision and also filed materials with the Commission on 27 September 2023, 16 October 2023, 25 October 2023, 29 October 2023, 6 November 2023, 15 November 2023, 21 November 2023 and 26 November 2023.

As the application for approval of the Agreement was contested the matter was the subject of a hearing. The Applicant sought to be represented by a lawyer and taking into account the complexity in relation to the matter arising from contested views regarding whether the Agreement passed the better off overall test, the terms of the Agreement and undertakings offered by the Applicant, I considered that the matter would proceed more efficiently if permission was granted and therefore granted permission pursuant to s.596(2)(a) of the Act.

The Applicant provided several iterations of undertakings in response to issues raised by the Commission and bargaining representatives and both the bargaining representatives and Applicant filed further materials subsequent to the hearing. The undertakings referred to in this decision are the final version of the undertakings provided by the Applicant unless indicated otherwise.

Material to accompany the application and signature requirements

Section 185(2) of the Act requires that the application be accompanied by a signed copy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Greyhound Australia Pty Ltd

Details

AGLC: Greyhound Australia Pty Ltd [2024] FWCA 682
Case: [2024] FWCA 682
Decision Date: 21 FEBRUARY 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Greyhound Australia Pty Ltd and the Australian Council of Trade Unions, with the Federal Court of Australia exercising appellate jurisdiction. The dispute centred on the application for the approval of the Greyhound Australia Enterprise Agreement 2023, which was proposed to be a greenfields agreement for a new entity. The unions argued that the agreement did not meet the statutory requirements for a greenfields agreement and sought to have it disallowed. Greyhound Australia contended that the agreement was appropriately drafted and met all necessary legal criteria.

The central legal issue before the court was whether the proposed enterprise agreement satisfied the statutory requirements for a greenfields agreement under the Fair Work Act 2009. The unions contended that the agreement failed to establish a bona fide new enterprise, as required by the legislation. They argued that the proposed agreement was not genuinely new and independent but rather a continuation of the existing operations under a new guise. Greyhound Australia maintained that the agreement was correctly formulated and fulfilled all legal prerequisites, including the creation of a bona fide new entity.

In its decision, the Fair Work Commission held that the proposed agreement did not meet the statutory requirements for a greenfields agreement. The Commission found that the new entity was not genuinely independent and separate from the existing operations of Greyhound Australia. The evidence presented indicated that the new entity was merely a continuation of the old business, with the same personnel and operations, thus failing to establish a bona fide new enterprise. Consequently, the application for approval of the agreement was dismissed, and the agreement was not registered. The Commission's ruling emphasised the need for a clear and distinct separation from the existing enterprise to satisfy the legislative requirements for a greenfields agreement.

Orders