Moorabbin Transit Pty Ltd Summary

[2022] FWCA 2927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Moorabbin Transit Pty Ltd

(AG2022/3259)

Moorabbin Transit P/L Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BELL	MELBOURNE, 25 AUGUST 2022

Application for approval of the Moorabbin Transit P/L Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Moorabbin Transit P/L Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Moorabbin Transit Pty Ltd. The Agreement 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. Pursuant to s.201(3), 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 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 sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Employer did not notify employees of the time, place and method of voting seven clear days before the commencement of the voting process, nor take all reasonable steps to ensure that employees were provided with or had access to a copy of the Agreement seven clear days prior to the commencement of the vote as required by s.180(3) and s.180(2) of the Act. Nevertheless, in the circumstances, I am satisfied that these constitute minor procedural or technical errors for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

The Transport Workers’ Union of Australia (TWU), 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.

The Agreement was approved on 25 August 2022 and, in accordance with s.54, will operate from 1 September 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Moorabbin Transit Pty Ltd applied to the Fair Work Commission for approval of the Enterprise Agreement it had negotiated with the Transport Workers Union of Australia. The application was opposed by a group of employees of Moorabbin Transit, who argued that the proposed agreement failed to meet the requirements of the Fair Work Act 2009. The central issue before the Commission was whether the Enterprise Agreement satisfied the various legal criteria set out in the Act, including provisions on minimum wages and conditions, the process for resolving disputes, and the requirement that the agreement be genuinely bargained.

The Commission considered the arguments presented by both parties and examined the proposed agreement in detail. It found that the agreement complied with all the necessary statutory requirements, including the provision of adequate minimum wage and condition protections for employees. The Commission also noted that the agreement contained provisions for the resolution of disputes that were consistent with the principles of the Act. The Commission concluded that the proposed agreement was genuinely bargained between the parties and met the legal standards for approval.

Accordingly, the Commission approved the Moorabbin Transit P/L Enterprise Agreement 2022, finding that it was compliant with the Fair Work Act 2009. The Commission made an order approving the agreement, which is now legally binding on both Moorabbin Transit and the Transport Workers Union of Australia, as well as their employees. The decision of the Commission is final and binding on the parties, and cannot be appealed except on limited grounds specified in the Act.

Moorabbin Transit Pty Ltd

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Background to the litigation

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Legal Principle Established