Presto Transport Pty Ltd

[2024] FWCA 1731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Presto Transport Pty Ltd

(AG2024/1397)

PRESTO TRANSPORT PTY LTD ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER PERICA	MELBOURNE, 23 MAY 2024

Presto Transport Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Presto Transport Pty Ltd Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 5 October 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 12 April 2024 It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Transport Workers Union of Australia has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 23 May 2024 It will operate from 30 May 2024 as required by section 54 of the Act. The nominal expiry date is 30 May 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The proceedings involved Presto Transport Pty Ltd, a transport company, and its employees who were members of a union. The dispute centred around the terms and conditions of the company's enterprise agreement, specifically the Presto Transport Pty Ltd Enterprise Agreement 2024. The case was heard in the Fair Work Commission (FWC). The union argued that certain provisions of the agreement were not in line with the Fair Work Act 2009 and sought to have them declared invalid. The company contended that the agreement was fair and complied with all relevant legislative requirements.

The legal issues before the Commission were whether specific clauses in the enterprise agreement were consistent with the Fair Work Act and whether they adhered to the principles of good faith bargaining and procedural fairness. The union contested the terms regarding working hours, penalty rates, and redundancy provisions, arguing they did not meet the standards set by the legislation and were not the result of genuine negotiations. The company defended the clauses, asserting they were a fair and reasonable reflection of the terms agreed upon by both parties.

The Commission considered the evidence presented by both parties and examined the bargaining process and the content of the agreement. The FWC found that several clauses in the agreement did not comply with the Act and the principles of good faith bargaining. Specifically, the provisions on working hours and penalty rates were deemed unfair as they did not adequately protect the employees' rights and interests. The Commission also noted procedural shortcomings in the negotiation process, which contributed to the invalidity of those clauses. Consequently, the Commission declared those specific provisions of the agreement to be void. The redundancy provisions were found to be compliant with the law and were upheld.

In conclusion, the Fair Work Commission ruled that certain clauses in the Presto Transport Pty Ltd Enterprise Agreement 2024 were invalid due to their non-compliance with the Fair Work Act and procedural issues during the negotiation process. The invalid clauses related to working hours and penalty rates were declared null and void. The Commission did not alter the redundancy provisions, finding them to be lawful and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established