Keolis Downer Hunter Pty Ltd

[2022] FWCA 3259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Keolis Downer Hunter Pty Ltd

(AG2022/3747)

Keolis Downer Newcastle Bus Operations Enterprise Agreement 2021

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 19 SEPTEMBER 2022

Application for approval of the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement to be known as the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Keolis Downer Hunter Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 16 September 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Passenger Vehicle Transportation Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Rail Tram and Bus Industry Union, NSW Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

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

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2022. The nominal expiry date of the Agreement is 28 November 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 Bus Operations Enterprise Agreement 2021. The applicants sought to have the agreement registered by the Commission, which would render it a legally binding award for the purposes of the Fair Work Act 2009. The application was opposed by the Transport Workers Union of Australia, the Australian Council of Trade Unions, and several individual employees. The parties disputed various aspects of the agreement, including whether it complied with the requirements of the Fair Work Act and whether it was negotiated in good faith.

The Fair Work Commission was required to determine whether the agreement satisfied the requirements for registration under section 232 of the Fair Work Act. This included assessing whether the agreement provided for a direct, clear and certain method of determining the rates of pay and conditions of employment of the employees covered by the agreement. The Commission was also required to consider whether the agreement was negotiated in good faith and whether it provided for a fair and reasonable outcome for the employees.

The Fair Work Commission found that the agreement was compliant with the requirements of the Fair Work Act and was negotiated in good faith. The Commission noted that the agreement provided for a clear and certain method of determining the rates of pay and conditions of employment of the employees, and that it provided for a fair and reasonable outcome for the employees. The Commission also found that the agreement was not discriminatory and that it did not undermine the protection afforded by the Fair Work Act. Accordingly, the Fair Work Commission approved the agreement and registered it as a legally binding award.

The Fair Work Commission's decision provides guidance on the requirements for approving an enterprise agreement and the factors that the Commission will consider in making its decision. The decision reinforces the importance of negotiating enterprise agreements in good faith and of providing for a clear and certain method of determining the rates of pay and conditions of employment of the employees covered by the agreement. The decision also highlights the importance of ensuring that enterprise agreements do not undermine the protection afforded by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established