SouthLink Pty Ltd

[2022] FWCA 3585

[2022] FWCA 3585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SouthLink Pty Ltd

(AG2022/3976)

SouthLink Bus Drivers 2022 Enterprise Agreement

Passenger vehicle transport (non rail) industry
COMMISSIONER CIRKOVIC	MELBOURNE, 14 OCTOBER 2022

Application for approval of the SouthLink Bus Drivers 2022 Enterprise Agreement

1. An application has been made for approval of an enterprise agreement known as the SouthLink Bus Drivers 2022 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 SouthLink Pty Ltd. The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 28 September 2022.

1. On 28 September 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• I sought further information regarding how many casual employees were engaged and eligible at the time of the vote, and how the Notice of Employee Representational Rights (NERR) was issued to employees.

• Clause 4 of the Agreement stated that it would commence operation from the first full pay period on or after the date of approval by the Fair Work Commission, and was contrary to s.54 of the Act.

• The Agreement did not describe or define an employee as a shiftworker for the purpose of the National Employment Standards (NES), in accordance with s.187(4) and s.196 of the Act.

• Clauses 28.6, 31.1.8, 32, 38.2, 38.4, 41, and 46.2 were potentially inconsistent with the NES, but noting clause 5, I was satisfied that the more beneficial entitlements of the NES would prevail in the event of any inconsistency.

• The Agreement was silent on agreed hours and overtime safeguards for part-time employees which were otherwise provided under the Passenger Vehicle Transportation Award 2020 (the Award).

1. On 30 September 2022, the Transport Workers’ Union of Australia (TWU), being a bargaining representative for the Agreement, gave 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.

1. The TWU raised a further concern that the Agreement was silent on allowances which were otherwise provided under the Award, most notably allowances for ‘Fare and Travelling Time’ and ‘Vehicle Allowance’ at clauses 17.3(e) and 17.3(f) of the Award respectively. I invited the Employer to address this concern.

1. 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.

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

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the  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.

1. The Agreement was approved on 14 October 2022 and, in accordance with s.54, will operate from 21 October 2022. The nominal expiry date of the Agreement is 14 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A