Surfside Buslines Pty Ltd

[2025] FWCA 511

[2025] FWCA 511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Surfside Buslines Pty Ltd

(AG2024/5307)

KINETIC GOLD COAST AND NORTHERN NEW SOUTH WALES ENTERPRISE AGREEMENT 2024

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 7 FEBRUARY 2025

Application for approval of the Kinetic Gold Coast and Northern New South Wales Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the Kinetic Gold Coast and Northern New South Wales Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Surfside Buslines Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made and to also have been issued in the pre-6 June reform version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. Correspondence was sent to the Employer by my Chambers raising a number of concerns including for work performed on Saturdays. The Applicant provided a detailed explanation including detailed calculations. The Applicant submitted that on the basis of the types and patterns of work reasonably foreseeable, that the BOOT could be satisfied. I am consequently satisfied that per s. 193A(6A) of the Act no detriment would be afforded to those lesser conditions on the basis of types and patterns of work that are reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test. I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

1. The Agreement does not contain a delegates’ rights term, pursuant to s.205A, and on that basis the term in the relevant modern award will apply.

1. The Commission notes that whilst it is unclear on its face, in accordance with clause 1.5 of the Agreement, the underpinning Award is incorporated.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 16.4 – Abandonment of employment.

·   Clause 23.3 – Public Holiday substitution.

However, noting clause 1.4 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 Transport Workers Union (TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

1. The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions and on the basis of the undertakings given, the circumstances that are reasonably foreseeable (as set out in paragraph [3] and the more beneficial terms of the Agreement, I am satisfied that the Agreement passes the BOOT.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

<AE527963  PR784151>