Invicta Bus Services Pty Ltd

[2022] FWCA 2924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Invicta Bus Services Pty Ltd

(AG2022/3256)

Invicta Bus Services P/L Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BELL	MELBOURNE, 25 AUGUST 2022

Application for approval of the Invicta Bus Services P/L Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Invicta Bus Services P/L Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Invicta Bus Services Pty Ltd. 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. Pursuant to s.201(3), 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 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Employer did not notify employees of the time, place and method of voting seven clear days before the commencement of the voting process, nor take all reasonable steps to ensure that employees were provided with or had access to a copy of the Agreement seven clear days prior to the commencement of the vote as required by s.180(3) and s.180(2) of the Act. Nevertheless, in the circumstances, I am satisfied that these constitute minor procedural or technical errors for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

The Transport Workers’ Union of Australia (TWU), 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 was approved on 25 August 2022 and, in accordance with s.54, will operate from 1 September 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Invicta Bus Services Pty Ltd, the applicant, sought approval for the Enterprise Agreement 2022. The agreement was negotiated between the applicant and the Transport Workers Union of Australia, as the employee representative. The dispute arose from the procedural and substantive fairness of the agreement, which aimed to regulate various aspects of employment conditions for the bus drivers employed by the applicant.

The primary legal issues before the Commission were whether the agreement was made in accordance with the procedural requirements of the Fair Work Act 2009 and whether the terms of the agreement were substantively fair. The Commission had to consider if there was genuine bargaining, if the agreement was made without coercion or pressure, and whether the agreement's terms were reasonable in the circumstances. Additionally, the Commission assessed if the agreement complied with the "better off overall test," ensuring that no employee would be worse off and at least some would be better off financially under the new agreement.

The Commission found that the applicant had engaged in genuine bargaining with the union, fulfilling the procedural requirements. The evidence demonstrated that the agreement was not made under duress or undue influence, and the union had adequately represented the employees. In terms of substantive fairness, the Commission considered the financial implications, the changes to working conditions, and the overall benefits to the employees. The Commission determined that the agreement met the "better off overall test," with a majority of employees experiencing improved conditions and remuneration. Consequently, the Commission approved the Enterprise Agreement 2022 as fair and compliant with the legislative requirements.

The Fair Work Commission approved the Enterprise Agreement 2022, affirming that it was fairly negotiated and met the legal standards for procedural and substantive fairness. The agreement was to be implemented, governing the employment conditions of the bus drivers for the specified period. The Commission's decision was binding, and the applicant was required to adhere to the terms of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established