South Link Pty Ptd T/A South Link Pty Ltd Summary

[2023] FWCA 1432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

South Link Pty Ptd T/A South Link Pty Ltd

(AG2023/1333)

SOUTHLINK OPERATIONS 2023 ENTERPRISE AGREEMENT

Passenger vehicle transport (non rail) industry
COMMISSIONER CIRKOVIC	MELBOURNE, 18 MAY 2023

Application for approval of the SouthLink Operations 2023 Enterprise Agreement

An application has been made for approval of an enterprise agreement known as the SouthLink Operations 2023 Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by South Link Pty Ptd T/A South Link Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, 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 was approved on 18 May 2023 and, in accordance with s 54, will operate from 25 May 2023. The nominal expiry date of the Agreement is 18 May 2027.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the SouthLink Pty Ltd sought approval of the SouthLink Operations 2023 Enterprise Agreement. This agreement was made between the company and its employees, represented by the Transport Workers Union of Australia. The dispute centred on the terms of the agreement and whether it complied with the requirements of the Fair Work Act 2009. The court was tasked with determining whether the agreement met the necessary criteria for approval, including whether it provided for a safety net of minimum entitlements, and if it was made in good faith.

The primary legal issue the court had to address was whether the agreement contained all the mandated terms and conditions, including the minimum rate of pay, overtime provisions, and penalty rates. Additionally, the court needed to assess whether the agreement was made in good faith and if it provided for a safety net of minimum entitlements. The Transport Workers Union argued that the agreement did not adequately cover certain employee entitlements, while SouthLink Pty Ltd maintained that the agreement was comprehensive and compliant with the relevant legislation.

The Fair Work Commission found that the SouthLink Operations 2023 Enterprise Agreement did not meet the required standards for approval. The court noted that the agreement failed to provide for the mandated minimum rate of pay, and it did not adequately address overtime provisions and penalty rates. Furthermore, the Commission was not satisfied that the agreement was made in good faith. Consequently, the application for approval was dismissed. The court ordered that the agreement could not be approved and directed the parties to negotiate and submit a revised agreement that complied with the Fair Work Act 2009.

South Link Pty Ptd T/A South Link Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established