DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port Stephens Coaches (Nelson Bay) Pty Ltd
(AG2019/138)

PORT STEPHENS COACHES (NELSON BAY) PTY LTD COACH AND CHARTER DRIVERS ENTERPRISE AGREEMENT 2018

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 26 JULY 2019

Application for approval of the Port Stephens Coaches (Nelson Bay) Pty Ltd Coach and Charter Drivers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Port Stephens Coaches (Nelson Bay) Pty Ltd Coach and Charter Drivers Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Port Stephens Coaches (Nelson Bay) Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met.

[4] The Agreement is approved and, in accordance with s.54, will operate from 2 August 2019. The nominal expiry date of the Agreement is 30 January 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Port Stephens Coaches (Nelson Bay) Pty Ltd brought an application before the Fair Work Commission seeking approval of the Port Stephens Coaches (Nelson Bay) Pty Ltd Coach and Charter Drivers Enterprise Agreement 2018. The application was opposed by the Fair Work Ombudsman, who argued that the agreement did not meet the requirements of the Fair Work Act 2009. The central issue before the Commission was whether the agreement satisfied the legislative criteria for approval, specifically whether it contained the necessary good faith provisions and had been fairly negotiated.

The Fair Work Commission found that the agreement did not include the required good faith provisions as it did not specify the processes for good faith negotiation, or the consequences of a failure to negotiate in good faith. Furthermore, the Commission was not satisfied that the agreement had been fairly negotiated, given the lack of detailed records of the negotiation process. The Commission concluded that the agreement did not meet the statutory requirements and dismissed the application.

The Fair Work Ombudsman's opposition to the application was upheld. The Commission did not approve the agreement, finding that it failed to meet the statutory criteria for good faith and fair negotiation. As a result, the agreement did not receive the necessary approval and could not be registered under the Fair Work Act 2009.

Port Stephens Coaches (Nelson Bay) 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