Keolis Downer Hunter Pty Ltd

[2023] FWCA 1228

[2023] FWCA 1228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Keolis Downer Hunter Pty Ltd

(AG2023/1037)

KEOLIS DOWNER SENIOR AND SALARIED EMPLOYEES NEWCASTLE BUS ENTERPRISE AGREEMENT 2023

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 APRIL 2023

Application for approval of the Keolis Downer Senior and Salaried Employees Newcastle Bus Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Keolis Downer Senior and Salaried Employees Newcastle Bus Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Keolis Downer Hunter Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The application was required to be filed within 14 days after it was made on 27 March 2023 in accordance with s.185(3) of the Act. As it was not filed until 13 April 2023, it was filed three days after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different year in the Enterprise Agreement title. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. I note that the Agreement is silent in respect of trainee rates of pay and accept the Applicants submissions that this is because they would be paid the rate of pay for the relevant classification.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Australian Rail, Tram and Bus Industry Union (RTBU) and the Australian Municipal, Administrative, Clerical and Services Union, New South Wales and ACT (Services) Branch (ASU) have both lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the RTBU and the ASU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

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