Ivanhoe Bus Company Pty Ltd

[2022] FWCA 2926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ivanhoe Bus Company Pty Ltd

(AG2022/3258)

Ivanhoe Bus Company P/L Enterprise Agreement 2022

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

Application for approval of the Ivanhoe Bus Company P/L Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Ivanhoe Bus Company P/L Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ivanhoe Bus Company 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

Ivanhoe Bus Company Pty Ltd, an employer, and the Australian Bus Drivers Union, representing its employees, brought before the Fair Work Commission an application for approval of the Ivanhoe Bus Company P/L Enterprise Agreement 2022. The dispute arose from negotiations between the parties that led to a proposed enterprise agreement, which both parties sought to have approved by the Commission. The primary concern was whether the agreement met the statutory requirements for approval, particularly under the Fair Work Act 2009.

The legal issues that the Commission had to decide included whether the agreement was made in good faith, whether it was appropriately certified as a single interest employer bargaining agent, and whether it complied with the procedural and substantive requirements of the Fair Work Act. Specifically, the Commission examined if the agreement contained all the mandatory terms prescribed by the Act, if it was fair and reasonable, and if the process of reaching the agreement was compliant with the requirements set out in the legislation.

In its decision, the Fair Work Commission found that the agreement was made in good faith and that the Australian Bus Drivers Union was appropriately certified as a single interest employer bargaining agent. The Commission also determined that the agreement met all the mandatory terms under the Fair Work Act and was fair and reasonable. The process leading to the agreement was found to be compliant with the procedural requirements, and the agreement was approved. The Commission emphasised the importance of fair and reasonable terms in the agreement, ensuring that both parties' interests were adequately represented.

The Fair Work Commission approved the Ivanhoe Bus Company P/L Enterprise Agreement 2022, effective from the date of the decision. The approval was contingent upon the agreement being registered with the Australian Industrial Relations Commission within the specified timeframe. This outcome provided certainty and legal validity to the terms of the agreement, ensuring that both the employer and the employees were bound by the provisions outlined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established