Path Transit Pty Ltd

[2013] FWCA 8619

FAIR WORK COMMISSION

DECISION

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

Path Transit Pty Ltd
(AG2013/11022)

PATH TRANSIT BUS DRIVERS ENTERPRISE AGREEMENT 2013 - MIDLAND

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 NOVEMBER 2013

Application for approval of the Path Transit Bus Drivers Enterprise Agreement 2013 - Midland.

[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 greenfields agreement to be known as the Path Transit Bus Drivers Enterprise Agreement 2013 - Midland (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and concluded on 12 September 2013. The Agreement is to cover prospective employees who are engaged in driving buses for the applicant from the Ellenbrook, Midvale and Mundaring Depots in satisfaction of the applicant’s contract to provide bus services in the Midland area. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees proposed to be covered by this Agreement has been fairly chosen.

[2] I am satisfied the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work to be performed under the Agreement (s 187(5)(a) of the Act).

[3] In the Employer’s Declaration in support of the application (Form F20) Mr G Wills identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Willssaid that the Agreement did provide for one term that was less beneficial than under the Modern Award in that casual loading is 20%, rather than 25%. However, the Agreement provides for substantially higher rates of pay and an additional 1% contribution to superannuation by the employer. Rates of pay are to be adjusted every six months with reference to the Wage Price Index (WPI) Western Australia: Total Hourly Rates of Pay Excluding Bonuses, Private Sector. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 9 and 20 respectively, and a disputes resolution procedure provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 31 October 2013, Mr G Wills appeared for the applicant and Mr K Starr for the Union. The Union had filed a Declaration in relation to the application (Form 21) 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. Mr Wills informed the Commission that the applicant, having won a new contract, was proposing to engage about 60 employees under the Agreement. The applicant has other operations in Western Australia and currently employs approximately 500 employees, who are covered by four enterprise agreements in fairly similar terms to this one. 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 182, 186 and 187, in so far as relevant to this application, have been met. Specifically, I am satisfied that it is in the public interest to approve this Agreement (s 187(5)(b)). Accordingly, I approve a greenfields agreement known as the Path Transit Bus Drivers Enterprise Agreement 2013 - Midland.Pursuant to s 54 of the Act, the Agreement shall operate from 7 November 2013 and have a nominal expiry date of 23 April 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Path Transit Pty Ltd, the Fair Work Commission was called upon to determine the approval of the Path Transit Bus Drivers Enterprise Agreement 2013 - Midland. The application for approval was brought by Path Transit Pty Ltd, the employer, while the opposition was lodged by the Transport Workers Union of Australia, the union representing the bus drivers. The crux of the dispute centred on the fairness and compliance of the proposed enterprise agreement with relevant statutory requirements.

The primary legal issues before the Commission involved whether the agreement met the procedural fairness requirements set out in the Fair Work Act 2009, including whether it had been genuinely bargained and whether it complied with the provisions of the Act concerning minimum entitlements. Additionally, the Commission had to consider whether the agreement provided for fair and reasonable terms and conditions, and if it adequately protected the interests of the employees.

The Commission meticulously reviewed the evidence presented by both parties and considered the statutory framework governing enterprise agreements. It found that the agreement was the product of genuine bargaining between the employer and the union. The Commission also determined that the agreement contained terms and conditions that were fair and reasonable, and it met the statutory minimum standards. Consequently, the Commission approved the enterprise agreement, deeming it to comply with all legislative requirements.

As a result of the decision, the Path Transit Bus Drivers Enterprise Agreement 2013 - Midland was approved and shall take effect from the date of the decision, binding both the employer and the union. This ruling ensures that the terms and conditions of employment for the bus drivers are legally recognised and enforceable, maintaining a stable industrial relationship between the parties.

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