Keolis Downer Northern Beaches Pty Ltd

[2023] FWCA 243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Keolis Downer Northern Beaches Pty Ltd

(AG2022/5459)

KDNB ENGINEERING AND MAINTENANCE ENTERPRISE AGREEMENT 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 24 JANUARY 2023

Application for approval of the KDNB Engineering and Maintenance Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the KDNB Engineering and Maintenance Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Keolis Downer Northern Beaches Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Coverage of employee organisations

The following employee organisations (all of which were bargaining representatives for the Agreement), have given notice under s.183 of the Act that they want to be covered by the Agreement:

Australian Rail, Tram, and Bus Industry Union (RTBU);

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); and

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

Conclusion

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 31 January 2023. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Keolis Downer Northern Beaches Pty Ltd applied for the approval of the KDNB Engineering and Maintenance Enterprise Agreement 2022. The applicant, a private bus operator, sought the approval of the agreement which it had negotiated with its employees represented by the Rail, Tram and Bus Industry Union. The dispute centred on the terms of the agreement and whether they complied with relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission had to determine if the agreement provided for a fair and efficient enterprise-wide bargaining process, whether it contained appropriate mechanisms for the resolution of disputes, and whether it adhered to the general protections and minimum entitlements stipulated in the Act. The Commission also needed to assess if the agreement included provisions for the protection of vulnerable employees and whether it was consistent with the Fair Work Commission's public interest considerations.

In delivering its decision, the Commission found that the agreement was generally consistent with the statutory requirements. The Commission highlighted that the agreement provided for an efficient bargaining process and contained adequate dispute resolution mechanisms. While noting some areas of concern, the Commission concluded that the overall provisions of the agreement were fair and met the necessary standards for approval. The Commission emphasised the importance of ensuring that the agreement continued to protect the rights of vulnerable employees and provided for ongoing consultation between the parties.

Accordingly, the Fair Work Commission approved the KDNB Engineering and Maintenance Enterprise Agreement 2022, effective from the date of the decision. The approval was subject to the condition that any changes to the agreement in the future must also comply with the statutory requirements. The Commission's decision was a comprehensive assessment of the agreement's compliance with the Fair Work Act, reflecting the importance of balancing the interests of employers and employees in enterprise bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established