Sita Bus Lines Pty Ltd T/A Sita Bus Lines

[2020] FWCA 3585

[2020] FWCA 3585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sita Bus Lines Pty Ltd T/A Sita Bus Lines
(AG2020/1709)

SITA BUS LINES ENTERPRISE AGREEMENT 2020

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 8 JULY 2020

Application for approval of the Sita Bus Lines Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Sita Bus Lines Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sita Bus Lines Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Sita Bus Lines Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A), I am satisfied that the group of employees was fairly chosen.

[3] I note that Clause 38.2 of the Agreement purports to authorise deductions to be made from employee wages for any monies owed from unreconciled ticket sales. Further, Clause 38.3 provides that where Sita Bus Lines Pty Ltd has advanced money to an employee for whatever benefit and the monies are not repaid in full, Sita Bus Lines Pty Ltd is able to deduct from such debt or sum from the employee’s entitlements upon termination of employment. In my view, these clauses may not be permitted deductions within the meaning of s.324 of the Act and, pursuant to s.326 of the Act, are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[4] I also observe that certain provisions within the Agreement (clause 28.5.a -payment for public holidays and clause 31.4.b – capping unpaid carers leave at 16 hours per occasion, when employees may work a ten-hour shift pursuant to clause 21.3) may be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 of the Agreement, I am satisfied the more favourable entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Finally, I note clause 36 provides a regime that provides for the suspension of an employee from duties for a period of up to ten consecutive working days without pay as an alternative to termination of employment and consider it may have no effect. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[6] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Transport Workers’ Union (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 statutory declarations provided by the TWU, I note that the Agreement covers the TWU.

[8] The Agreement is approved and, in accordance with s.54(1)(b), will operate from the first full pay period on or after 15 July 2020. The nominal expiry date of the Agreement is 9 July 2024.

DEPUTY PRESIDENT

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