Keolis Downer Hunter Pty Ltd

[2022] FWCA 4200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Keolis Downer Hunter Pty Ltd

(AG2022/4642)

Keolis Downer Newcastle Ferry Masters Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 NOVEMBER 2022

Application for approval of the Keolis Downer Newcastle Ferry Masters Enterprise Agreement 2022

Keolis Downer Hunter Pty Ltd has made an application for approval of the Keolis Downer Newcastle Ferry Masters Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The employer has provided written undertakings, a copy of which 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 they will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement. Subject to these undertakings, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met. Pursuant to s 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 Australian Maritime Officers' Union (AMOU), 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) and based on its declaration, I note that the Agreement covers the AMOU.

The Agreement was approved on 30 November 2022 and, in accordance with s 54, will operate from 7 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 approval of the Keolis Downer Newcastle Ferry Masters Enterprise Agreement 2022. The application was brought under section 234 of the Fair Work Act 2009, which requires the Commission to approve an enterprise agreement if it meets the requirements of the Act. The applicant sought approval of the agreement which had been negotiated between Keolis Downer Hunter Pty Ltd and the Maritime Officers' Union of Australia. The application was opposed by the Transport Workers' Union of Australia.

The primary issue before the Commission was whether the enterprise agreement complied with the statutory requirements of the Fair Work Act 2009. In particular, the Commission was required to determine if the agreement satisfied the good faith bargaining and "better off overall" tests. The Commission also considered whether the agreement contained a sufficient mechanism for resolving disputes between the parties.

In reaching its decision, the Commission considered the evidence and submissions provided by the parties. It found that the agreement had been negotiated in good faith and that the parties had made a genuine attempt to reach an agreement. The Commission also concluded that the agreement was "better off overall" for the employees, as it provided for a range of improvements to their conditions of employment. The Commission was satisfied that the agreement contained an effective dispute resolution mechanism, which provided for the parties to first attempt to resolve any disputes through negotiation, and if necessary, to refer the dispute to the Fair Work Commission for resolution.

The Commission approved the Keolis Downer Newcastle Ferry Masters Enterprise Agreement 2022, finding that it met all the statutory requirements of the Fair Work Act 2009. The agreement is now a legally binding enterprise agreement between the parties, and will apply to the employees covered by the agreement. The Transport Workers' Union of Australia's opposition to the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established