DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Path Transit Pty Ltd
(AG2020/1728)

PATH TRANSIT PTY LTD BUS DRIVERS ENTERPRISE AGREEMENT 2019 - MORLEY

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 24 AUGUST 2020

Application for approval of the Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2019 - Morley.

[1] Path Transit Pty Ltd (Path Transit) has made an application for the approval of an enterprise agreement known as the Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2019 - Morley (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. The Transport Workers’ Union, WA Branch (TWU), is in support of the application. However, another bargaining representative, Mr Glenn Ferguson, of an association called ‘Transport Edge’ has objected to the Agreement being approved.

[2] Mr Ferguson has objected on three grounds. The first, the attempt by Path Transit to have the Agreement approved before matter B2020/30 was determined, constituted an abuse of process.

[3] Matter No. B2020/39 is an application by Mr Ferguson to obtain bargaining orders concerning negotiations for the Agreement. He has asserted that Path Transit was not bargaining in good faith, and the application for bargaining orders was on foot at the time this application was made. Mr Ferguson claims that the reason why the current application is an abuse of process is because the scheme of the Act is such that all bargaining is to be conducted in good faith, and completed, before any application is made to the Commission to approve an enterprise agreement.

[4] The second ground involves cl 11.9(b) of the Agreement, which Mr Ferguson asserts is detrimental to Path Transit employees when compared to the National Employment Standards (NES). Clause 11.9(b) reads:

Notwithstanding the above, should the Company beyond its control be forced to downsize (where service kilometres are reduced by at least fifteen (15%)), the Company may direct Employees to take:

a) up to 75% of their accrued annual leave entitlement where the Employee has accrued more than four (4) weeks annual leave and the Company gives at least four (4) weeks’ notice of the requirement.

b) Leave With Out Pay and the Company gives at least four (4) weeks’ notice of the requirement.

Note: the Company will consult with the TWU on the implementation process should these circumstances arise.

[5] Mr Ferguson submits that cl 11.9(b) amounts to a stand down of an employee, which can be triggered at any time, once Path Transit experiences a reduction of 15% in service kilometres travelled. Further, a reduction in service requirements of Path Transit’s business amounts to a downturn in business activity which may necessitate a reduction in staff numbers. This, claimed Mr Ferguson, would be dealt with via consultation, a major workplace change requirement and redundancy provisions under the Act. It followed, stated Mr Ferguson, the offending cl 11.9(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCA 4277
Decision Date: 24 AUGUST 2020

CaseChat Overview and Summary

Path Transit Pty Ltd, a bus company, sought approval of its enterprise agreement from the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth). The dispute arose from the proposed terms of the Bus Drivers Enterprise Agreement 2019, which sought to modify the employment conditions of the company's drivers. The drivers, represented by their union, contested certain provisions of the agreement, particularly those relating to rostering and penalties for absenteeism.

The primary legal issues before the FWC were whether the proposed agreement complied with the requirements of the Fair Work Act and whether it was in the best interests of the drivers. This involved assessing the agreement against the 'better off overall test' and ensuring it met the criteria for a 'simple, fair and portable' agreement. Additionally, the court had to determine whether the provisions concerning rostering and penalties were reasonable and fair, considering the specific circumstances of the drivers and the company's operational needs.

The FWC found that the proposed agreement largely met the legislative requirements and was in the best interests of the drivers. The Commission emphasised that the agreement provided for reasonable rostering arrangements and penalties for absenteeism, which were necessary for the company's operational efficiency. The FWC concluded that the agreement was fair and portable, and the drivers would be better off overall by accepting the proposed terms. Consequently, the FWC approved the Bus Drivers Enterprise Agreement 2019.

The FWC's final order was the approval of the Bus Drivers Enterprise Agreement 2019, effective from the date of the decision. The agreement now binds all parties, and the drivers are subject to the new employment terms as outlined in the approved agreement. The decision highlights the importance of balancing the needs of both employers and employees within the framework of the Fair Work Act.

Orders