Path Transit Pty Ltd

[2014] FWCA 1647

[2014] FWCA 1647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a greenfields agreement

Path Transit Pty Ltd
(AG2014/3822)

PATH TRANSIT DUNSBOROUGH ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 MARCH 2014

Application for approval of the Path Transit Dunsborough Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Path Transit Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Path Transit Dunsborough Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’). The Agreement is to cover 10 employees who are employed as Bus Drivers in the Busselton and Dunsborough regional area in Western Australia. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 30 October 2013, and voting for the Agreement’s approval took place on 25 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 9 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 February 2014. While I note that this falls outside the statutory time limit contemplated in s 185(3)(a), I consider it fair in all the circumstances to grant an extension of time for the application to be lodged until 27 February 2014 (s 185(3(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Wills, Operations Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the WA Passenger Bus Transit Industry Award 2000 [AP803716] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Willssaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay and is otherwise largely reflective of the Modern Award and the National Employment Standards. Rates of pay are to be adjusted annually by the movement in the Average Weekly Earnings, payable on 1 July 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 11 and 10 respectively, and a disputes resolution procedure at clause 12 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 7 March 2014, Mr G Wills appeared for the applicant and Mr K Starr for the Union. The Union filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Wills outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that the Agreement currently covers a small group of employees, but that this will change on 1 January 2015, when the business will expand to 40-50 employees. A new enterprise agreement will be negotiated at that time. Mr Starr supported the submissions of Mr Wills.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Path Transit Dunsborough Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 14 March 2014 and have a nominal expiry date of 31 December 2014.

DEPUTY PRESIDENT

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