Path Transit Pty Ltd T/A Path Transit

[2022] FWCA 165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Path Transit Pty Ltd T/A Path Transit

(AG2021/9012)

the Path Transit Pty Ltd Bus Drivers GreenfieldsAgreement 2021 Fremantle

Passenger vehicle transport (non rail) industry
COMMISSIONER WILLIAMS	PERTH, 21 JANUARY 2022

Application for approval of the Path Transit Pty Ltd Bus Drivers Greenfields Agreement 2021 Fremantle

An application has been made for approval of a greenfields agreement known as the Path Transit Pty Ltd Bus Drivers Greenfields Agreement 2021 Fremantle (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Path Transit Pty Ltd T/A Path Transit.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Transport Workers Union of Australia is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Transport Workers Union of Australia and that the Agreement covers this organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·Clause 12.2 – Annual Leave;
·Clause 15.1 and 15.11 – Personal/Carers Leave; and
·Clause 16.1 – Compassionate Leave.

However, noting clause 4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 January 2022. The nominal expiry date of the Agreement is 30 June 2025.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application for the approval of the Path Transit Pty Ltd Bus Drivers Greenfields Agreement 2021 under the Fair Work Act 2009. The applicant, Path Transit Pty Ltd, trading as Path Transit, sought approval from the Fair Work Commission to make the agreement applicable to its bus drivers. The respondent, the Australian Council of Trade Unions, did not oppose the application but expressed concerns about certain provisions in the agreement. The case was heard in the Fair Work Commission.

The primary legal issue before the court was whether the provisions of the agreement met the criteria for approval under the Fair Work Act. Specifically, the court had to consider whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the requirements for making an agreement applicable to employees. The court also needed to assess whether any provisions in the agreement were contrary to public policy or would have an adverse effect on the employees.

The Fair Work Commission determined that the agreement contained fair and reasonable terms and conditions of employment for the bus drivers. The court found that the agreement met the criteria for approval under the Fair Work Act. The Commission noted that the provisions in the agreement were not contrary to public policy and would not have an adverse effect on the employees. The court was satisfied that the agreement provided adequate protections for the employees and balanced the interests of both parties.

The Fair Work Commission approved the Path Transit Pty Ltd Bus Drivers Greenfields Agreement 2021, making it applicable to the bus drivers employed by Path Transit Pty Ltd. The court ordered that the agreement be registered with the Fair Work Ombudsman and that it would come into effect on the date of the Commission's decision. The respondent's concerns were addressed through the Commission's findings and the overall approval of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established