Swan Transit Services Pty Ltd

[2023] FWCA 1401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swan Transit Services Pty Ltd

(AG2023/1219)

SWAN TRANSIT ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 MAY 2023

Application for approval of the Swan Transit Enterprise Agreement 2023

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Swan Transit Enterprise Agreement 20233 (Agreement).

The Employer has provided written undertakings. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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.

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

· Clause 13.8 –Public holidays; and
· Clause 19.7 – Abandonment of employment.

However, noting clause 4.2 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 Transport Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 May 2023. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Swan Transit Services Pty Ltd sought approval of their proposed enterprise agreement from the Fair Work Commission. The application was made under the Fair Work Act 2009, and the dispute involved the terms and conditions of employment for the company's employees. The applicant argued that the proposed agreement was fair and reasonable, while opponents contended that it did not adequately protect employee interests.

The primary legal issues before the Commission were whether the agreement met the requirements for 'simplification, clarity and accessibility' under section 234 of the Act and whether it provided 'better off overall' for the employees as required under section 235. The Commission had to assess whether the agreement's provisions met the statutory criteria and whether it struck an appropriate balance between the interests of the employer and the employees.

In its decision, the Commission determined that the proposed agreement did indeed meet the statutory requirements for approval. The Commission found that the agreement was clear, accessible and simplified the existing conditions of employment. Additionally, it concluded that the agreement provided employees with a fair and reasonable outcome, offering them better overall terms and conditions than those previously in place. Consequently, the Commission approved the Swan Transit Enterprise Agreement 2023, finding it to be fair and reasonable.

The final orders of the Commission were that the Swan Transit Enterprise Agreement 2023 be approved and registered under the Fair Work Act 2009. The agreement was to take effect from 1 July 2023 and would apply to all employees covered by the agreement, replacing any existing enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established