Path Transit Pty Ltd

[2024] FWCA 1945

[2024] FWCA 1945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Path Transit Pty Ltd

(AG2024/1455)

APPLICATION FOR APPROVAL OF THE PATH TRANSIT PTY LTD BUS DRIVERS ENTERPRISE AGREEMENT 2024 – GERALDTON

Passenger vehicle transport (non rail) industry
COMMISSIONER LIM	PERTH, 28 MAY 2024

Application for approval of the Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2024 – Geraldton

1. Path Transit Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2024 – Geraldton (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 11 September 2023 and the Agreement was made on 17 April 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The title of the Agreement on the Notice of Employee Representational Rights is “Path Transit Pty Ltd Enterprise Agreement 2023 – Geraldton” whilst the Agreement title in clause 1.1 is “Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2024 – Geraldton”. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 8.10-8.27 of the Agreement appears to provide for casual conversion, however, it does not appear consistent with s 66B of the Act which provides that an Employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis.

(b)Clause 19.7 of the Agreement states that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

(c)Clause 22.3 of the Agreement appears to state that if an employee is absent for a period of 3 days without the consent of the Company and without notification to the Company, it shall be evidence that the employee has abandoned their employment. The employee will be deemed to have abandoned their employment if they have not established, within 10 days, that they were absent for a reasonable cause. Clause 22.3 states the termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the Company, whichever is later. This appears to be inconsistent with the NES at section 117 of the Act.

1. The Applicant has provided written undertakings to rectify the above issues. 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. In any event, I am also satisfied that under clause 4.4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. 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), and based on the declaration provided by the TWU, I note that the TWU is covered by the Agreement.

1. The Agreement was approved on 28 May 2024 and, in accordance with s 54, will operate from 4 June 2024. The nominal expiry date of the Agreement is 28 May 2028.

COMMISSIONER

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ANNEXURE A