Transit Australia Pty Ltd T/A Kinetic

[2024] FWCA 3301

[2024] FWCA 3301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Transit Australia Pty Ltd T/A Kinetic

(AG2024/3206)

KINETIC SUNSHINE COAST ENTERPRISE AGREEMENT 2024

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 18 SEPTEMBER 2024

Application for approval of the Kinetic Sunshine Coast Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Kinetic Sunshine Cost Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transit Australia Pty Ltd T/A Kinetic (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. 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. I note that the Agreement defines a shift worker at clause 11.1(g) for the purposes of eligibility for the additional weeks leave determined by the National Employment Standards, arises from the following term: “‘Regularly rostered work’ means that they have been rostered to work at least 34 Sundays and 6 Public Holidays in a Financial Year.” This is consistent with the Bench in O’Neill, Elizabeth v Roy Hill Holdings Pty Ltd [2015] FW 2461.

1. The Agreement does not contain a delegates rights term that is no less favourable than the modern award or does not contain a delegates’ rights term, pursuant to s.205A, and on that basis the term in the relevant modern award will apply and the delegates’ rights terms in the Agreement at clauses 25,26 and 33 will have no effect to the extent the Agreement will provide a more beneficial term,

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. The Agreement does not contain a model consultation term compliant with the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is 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 12.1 – Personal carers leave.

·   Clause 1401 Notice of termination deductions clause.

However, noting clause 1.5(a) 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 Commission raised concerns regarding the Better Off Overall Test (BOOT). I have considered the Applicant’s submissions in terms of Rosters at clause 4.1(i) that employees rostered above 38 hours per week would be paid overtime in accordance with the and in respect of Charter Work at Clause 21.but have determined that given the more beneficial terms of the Agreement and the undertakings given, the Agreement passed the BOOT. The TWU also raised a number of concerns however again I am satisfied that the more beneficial of the terms of the Agreement outweigh the concerns raised.

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.

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