Neville’s Bus Service Pty Ltd T/A Busabout

[2022] FWCA 3082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Neville’s Bus Service Pty Ltd T/A Busabout

(AG2022/3308)

Busabout and the Transport Workers’ Union of Australia Fair Work Agreement 2022

Road transport industry
COMMISSIONER MATHESON	SYDNEY, 6 SEPTEMBER 2022

Application for approval of the Busabout and the Transport Workers’ Union of Australia Fair Work Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Busabout and the Transport Workers’ Union of Australia Fair Work Agreement 2022 (Agreement). The application was made by Neville’s Bus Service Pty Ltd T/A Busabout (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 3(7) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Transport Workers’ Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2022. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of an enterprise agreement between Neville’s Bus Service Pty Ltd T/A Busabout and the Transport Workers’ Union of Australia, named the Busabout and the Transport Workers’ Union of Australia Fair Work Agreement 2022. The application was lodged under section 185 of the Fair Work Act 2009, which mandates the Commission’s approval of such agreements. The primary concern was to ensure that the terms of the agreement were in compliance with the National Employment Standards and other relevant provisions of the Fair Work Act.

The central legal issues the Commission needed to address involved the consistency of the Agreement with the NES, the financial implications for employees, and the extent to which the agreement would affect employees' rights and conditions. Additionally, the Commission had to verify if the Agreement met the necessary criteria for approval under sections 186, 187, 188, and 190 of the Fair Work Act, and whether the Transport Workers’ Union of Australia had given proper notice of its desire for the agreement to cover its members under section 183 of the Act.

The Fair Work Commissioner, Matheson, concluded that while some provisions of the Agreement appeared inconsistent with the NES, the Agreement ensured that more beneficial entitlements of the NES would prevail in cases of conflict, as stated in clause 3(7) of the Agreement. The Commissioner also reviewed the written undertakings provided by the Applicant, which included assurances that the acceptance of these undertakings would not cause financial detriment to employees or result in substantial changes to the Agreement. After considering the views of the bargaining representatives and the provisions of the Act, the Commissioner determined that all relevant requirements for approval had been met. The Transport Workers’ Union of Australia had also duly notified its intention for the Agreement to cover its members. Therefore, the Agreement was approved to operate from 13 September 2022, with a nominal expiry date of 30 June 2026.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established