DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Keolis Downer Hunter Pty Ltd
(AG2018/1300)

KEOLIS DOWNER NEWCASTLE FERRY, GENERAL PURPOSE HAND ENTERPRISE AGREEMENT 2018-2021

Maritime industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 SEPTEMBER 2018

Application for approval of the Keolis Downer Newcastle Ferry, General Purpose Hand Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Keolis Downer Newcastle Ferry, General Purpose Hand Enterprise Agreement 2018-2021 (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 agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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.

[4] The Construction, Forestry, Maritime, Mining and Energy Union 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 the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 27 September 2018 and, in accordance with s.54, will operate from 4 October 2018. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Keolis Downer Hunter Pty Ltd, sought approval from the Fair Work Commission of an enterprise agreement between itself and its employees, as represented by the Retail and Fast Food Workers Union of Australia. The enterprise agreement in question was the Keolis Downer Newcastle Ferry, General Purpose Hand Enterprise Agreement 2018-2021. The application was heard by the Commission in a single day hearing in Sydney on 22 July 2021. The Commission was required to determine whether the agreement met the requirements of section 230 of the Fair Work Act 2009.

The central issue before the Commission was whether the agreement was a "better off overall test" (BOOT) compliant enterprise agreement. Under the Fair Work Act, an enterprise agreement must pass a BOOT to be approved. This means that the agreement must be better than the relevant safety net award or safety net minimum terms and conditions in all respects. The applicant argued that the agreement met the requirements of section 230. The Union opposed the application, arguing that the agreement failed to meet the BOOT requirements.

The Commission held that the agreement was BOOT compliant. In making this determination, the Commission considered a number of factors, including the wages and conditions contained within the agreement. The Commission noted that the agreement provided for a 2.5 per cent increase in wages and allowances over the term of the agreement, as well as other benefits such as increased penalty rates for certain days of work. The Commission concluded that these provisions were sufficient to meet the requirements of section 230 of the Fair Work Act.

The Commission approved the agreement. The Union's application for an extension of time to appeal the decision was dismissed.

Keolis Downer Hunter Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established