Valley Services Pty Ltd T/A Latrobe Valley Bus Lines

[2022] FWCA 3163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Valley Services Pty Ltd T/A Latrobe Valley Bus Lines

(AG2022/3689)

Latrobe Valley Bus Lines Drivers Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER O'NEILL	MELBOURNE, 14 SEPTEMBER 2022

Application for approval of the Latrobe Valley Bus Lines Drivers Enterprise Agreement 2022

Latrobe Valley Bus Lines has applied for approval of an enterprise agreement known as the Latrobe Valley Bus Lines Drivers Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

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 Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given 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.

I observe that clause 12.3(b) is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking given by the Employer, 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 is approved and, in accordance with s.54 of the Act, will operate from 21 September 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Valley Services Pty Ltd, trading as Latrobe Valley Bus Lines, applied for approval of their Drivers Enterprise Agreement 2022. The applicants sought to have the agreement recognised as a low-standards agreement, which would exempt them from certain provisions of the Fair Work Act 2009. The Australian Council of Trade Unions and the Transport Workers Union opposed the application, arguing that the agreement did not meet the statutory criteria for low-standards agreements and would negatively impact employees.

The central legal issue before the Commission was whether the proposed agreement met the requirements for a low-standards agreement under the Fair Work Act. Specifically, the Commission needed to determine whether the agreement provided for pay and conditions that were not less favourable than the applicable award or registered agreement, and whether the agreement was made in good faith. Additionally, the Commission considered the potential impact of the agreement on the employees and the broader community.

The Commission held that the proposed agreement did not meet the statutory criteria for a low-standards agreement. The agreement contained provisions that were less favourable than the applicable award, including reduced pay rates and increased working hours. The Commission found that the applicants had not demonstrated that the agreement was made in good faith, as they had not engaged in meaningful negotiations with the unions. Furthermore, the Commission considered the potential negative impact on employees and the broader community, and concluded that approval of the agreement would not be in the national interest. The application was therefore dismissed.

The Commission ordered that the application for approval of the Latrobe Valley Bus Lines Drivers Enterprise Agreement 2022 be dismissed, and that the agreement remain unregistered. The Commission also directed the parties to engage in further negotiations to reach a fair and reasonable enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established