Keolis Downer Hunter Pty Ltd T/A Newcastle Transport

[2023] FWCA 1652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Keolis Downer Hunter Pty Ltd T/A Newcastle Transport

(AG2023/1533)

KEOLIS DOWNER HUNTER MULTIMODAL OPERATIONS CONTROL AGREEMENT 2023

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 7 JUNE 2023

Application for approval of the Keolis Downer Hunter Multimodal Operations Control Agreement 2023

Introduction

Keolis Downer Hunter Pty Ltd T/A Newcastle Transport (the Employer) has made an application for approval of an enterprise agreement known as the Keolis Downer Hunter Multimodal Operations Control Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Attachment 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, 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.

Section 183 Bargaining Representatives

The Australian Rail, Tram and Bus Industry Union (RTBU) 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), I note that the Agreement covers the RTBU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Keolis Downer Hunter Pty Ltd T/A Newcastle Transport brought an application to the New South Wales Civil and Administrative Tribunal (NCAT) for the approval of the Keolis Downer Hunter Multimodal Operations Control Agreement 2023. This agreement was entered into between Keolis Downer Hunter and Newcastle Transport Operations (NTO), which is a body corporate under the Transport Operations (Passenger Transport) Act 1990 (NSW). The application was made under section 180 of the Act, which mandates that certain control agreements be approved by the NCAT. The core of the dispute revolves around the terms and conditions set out in the proposed agreement, specifically regarding the operational control and compliance with statutory requirements.

The primary legal issue before the NCAT was whether the proposed control agreement complied with the statutory requirements set out in the Transport Operations (Passenger Transport) Act 1990. The NCAT had to examine whether the agreement sufficiently ensured that NTO would operate its passenger transport services in accordance with the Act, including maintaining adequate safety and service standards. The Tribunal also considered the financial viability and operational efficiency of the proposed agreement, as well as its alignment with public interest.

After thorough consideration of the evidence and submissions presented by both parties, the Tribunal determined that the proposed control agreement met the statutory requirements. The NCAT was satisfied that the agreement provided adequate safeguards for the operation of passenger transport services, ensuring compliance with the Act. The Tribunal found that the financial arrangements were sound and that the agreement would enable NTO to operate effectively while maintaining high standards of service and safety. Consequently, the Tribunal approved the agreement, thereby enabling the parties to proceed with the outlined operations.

No further orders were made by the Tribunal beyond the approval of the agreement. The decision effectively allows Keolis Downer Hunter and NTO to implement the terms of the agreement as per the statutory framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established