Keolis Downer Hunter Pty Ltd

[2022] FWCA 4421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Keolis Downer Hunter Pty Ltd

(AG2022/5011)

Keolis Downer Newcastle Ferry General Purpose Hand Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 DECEMBER 2022

Application for approval of the Keolis Downer Newcastle Ferry General Purpose Hand Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Keolis Downer Newcastle Ferry General Purpose Hand Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

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.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 December 2022. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Keolis Downer Hunter Pty Ltd applied to the Fair Work Commission for the approval of the Keolis Downer Newcastle Ferry General Purpose Hand Enterprise Agreement 2022. The applicant sought to have the agreement recognised as a certified agreement under the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable, while the respondent, the Transport Workers Union of Australia, raised concerns about certain provisions of the agreement.

The court had to determine whether the agreement was fair and reasonable, and whether it complied with the requirements of the Fair Work Act 2009. The court examined the agreement in its entirety, considering factors such as the bargaining power of the parties, the nature of the enterprise, and the interests of the employees. The court also considered the submissions of the parties and any relevant evidence.

The court found that the agreement was fair and reasonable, and that it complied with the requirements of the Fair Work Act 2009. The court noted that the agreement provided for a reasonable balance of interests between the parties, and that it included provisions for fair and reasonable terms and conditions of employment. The court also found that the agreement did not contain any provisions that were contrary to public policy or that would have an adverse effect on the employees.

The Fair Work Commission approved the Keolis Downer Newcastle Ferry General Purpose Hand Enterprise Agreement 2022 as a certified agreement under the Fair Work Act 2009. The agreement is now binding on all employees covered by the agreement, and the parties are required to comply with its terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established