LC Dysons Bus Services Pty Ltd T/A Dyson Group of Companies

[2022] FWCA 2973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

LC Dysons Bus Services Pty Ltd T/A Dyson Group of Companies

(AG2022/3156)

LC Dysons Bus Services Pty Ltd Driver Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER YILMAZ	MELBOURNE, 29 AUGUST 2022

Application for approval of the LC Dysons Bus Services Pty Ltd Driver Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the LC Dysons Bus Services Pty Ltd Driver Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by LC Dysons Bus Services Pty Ltd T/A Dyson Group of Companies. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the Agreement.

The Employer was invited to file additional materials and submissions to demonstrate that it took all reasonable steps to explain the terms and effect of the Agreement to employees pursuant to s.180(5) of Act. The Employer’s response was put to the Transport Workers’ Union of Australia (TWU) for comment. In view of the additional information filed by the Employer, I am satisfied that reasonable steps were taken to explain the terms and effect of the Agreement to employees.

Subject to the undertakings and additional materials before the Commission, I am satisfied that each of the requirements of ss.180, 186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The TWU 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 organisation.

The Agreement is approved and in accordance with s.54, will operate from 5 September 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved LC Dysons Bus Services Pty Ltd, trading as the Dyson Group of Companies, which sought approval of the LC Dysons Bus Services Pty Ltd Driver Enterprise Agreement 2022. The company sought to have the agreement approved under the Fair Work Act 2009, which mandates that certain criteria be met before an enterprise agreement can be approved. The legal issues that the Commission was required to address centred on whether the agreement complied with the procedural requirements and whether it met the "better off overall test" (BOOT) as outlined in the Act. The BOOT requires that the terms of the agreement be at least as good as the applicable awards or any existing enterprise agreements.

The Fair Work Commission considered the submissions made by both the applicant and the objectors to the agreement. The Commission assessed whether the agreement had been negotiated in good faith, whether it contained the necessary provisions, and whether it complied with the procedural requirements. The Commission also examined the financial implications of the proposed agreement for the employees, considering both the direct and indirect benefits and detriments, to determine whether it met the BOOT. The applicant argued that the agreement improved various aspects of the employees' conditions, while the objectors contended that certain terms were unfavourable.

After thorough deliberation, the Fair Work Commission determined that the agreement met the procedural requirements and that it complied with the BOOT. The Commission found that the negotiation process had been conducted in good faith and that the agreement contained all the necessary provisions as required by the Act. The Commission concluded that the financial implications of the agreement were such that the employees would be better off overall, despite some objections raised by the objectors. Therefore, the Commission approved the LC Dysons Bus Services Pty Ltd Driver Enterprise Agreement 2022, deeming it to be in compliance with the Fair Work Act 2009. The approval was effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established