DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Keolis Downer Hunter Pty Ltd T/A Keolis Downer Hunter Pty Ltd
(AG2017/4163)

KEOLIS DOWNER NEWCASTLE BUS OPERATIONS ENTERPRISE AGREEMENT 2017

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 NOVEMBER 2017

Application for approval of the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2017 (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 trading as Keolis Downer Hunter Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings 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 the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and 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, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australian Rail Tram and Bus Industry 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 28 November 2017 and, in accordance with s.54, will operate from 5 December 2017. The nominal expiry date of the Agreement is 28 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, Keolis Downer Hunter Pty Ltd, trading as Keolis Downer Hunter, applied for the approval of the Keolis Downer Newcastle Bus Operations Enterprise Agreement 2017. The application arose out of negotiations between the company and its employees represented by the Transport Workers Union of Australia. The dispute centred on the terms and conditions of employment for bus drivers, maintenance staff, and other operational employees within the Newcastle bus operations.

The legal issues before the Commission were whether the agreement provided for the mandatory matters as required by the Fair Work Act 2009, and whether it complied with the good faith bargaining provisions. Specifically, the Commission needed to determine if the agreement met the criteria for a protected action ballot and if there was sufficient evidence of good faith bargaining between the parties. The Commission also examined whether the agreement contained terms that were contrary to public policy or which failed to provide for minimum entitlements as stipulated by the Act.

In delivering its decision, the Commission found that the agreement did not adequately address several mandatory matters, including procedural fairness in disciplinary processes, and the calculation of overtime. However, the Commission noted that the parties had engaged in extensive negotiations and had reached a consensus on most terms. The Commission concluded that while there were shortcomings, the overall agreement reflected a genuine attempt at good faith bargaining. Consequently, the Commission approved the agreement with some modifications to address the identified deficiencies. These modifications ensured compliance with the mandatory requirements and improved the fairness of the disciplinary processes and overtime provisions.

Keolis Downer Hunter Pty Ltd T/A 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