Swan Transit Services (South West) Pty. Ltd.

[2014] FWCA 8171

[2014] FWCA 8171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a greenfields agreement

Swan Transit Services (South West) Pty. Ltd.
(AG2014/9759)

SWAN TRANSIT SERVICES (SOUTH WEST) PTY. LTD. ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 NOVEMBER 2014

Application for approval of the Swan Transit Services (South West) Pty. Ltd. Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Swan Transit Services (South West) Pty. Ltd. (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields agreement to be known as the Swan Transit Services (South West) Pty. Ltd. Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with Transport Workers’ Union of Australia (the ‘Union’) and is to cover prospective employees who are engaged as driving staff and on-road staff. The Agreement was made on 28 October 2014 (s 182(3)). The application for approval of the Agreement was lodged on 3 November 2014, thereby satisfying s 185(3) of the Act.

[2] In the Employer’s Declaration in support of the application (Form F20) Mr B Thompson, General Manager WA and NT identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Thompsonsaid that the Agreement provides for one term that is less beneficial than under the relevant reference instrument, in that employees are paid reduced penalty rates for work performed on Sundays. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Modern Award, including higher rates of pay, journey to work insurance cover and more generous penalty rates for work performed on public holidays. I am satisfied that the Agreement passes the BOOT. Rates of pay are to be increased on 29 June 2015, 4 July 2016 and 3 July 2017 in accordance with the movement in the Average Wage Earnings, States & territories; Full time adult ordinary earnings; WA, Index No. 6302. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5.2 and 5.1 respectively, and a disputes resolution procedure at clause 5.3 provides for mediation and arbitration by the Commission.

[3] At a hearing of the application on 17 November 2014, Ms E Jenkin, Solicitor,appeared with Mr M Kent for the applicant and Mr T Dawson for the Union. The Union had filed a Declaration in relation to the application (Form F21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Ms Jenkin outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Mr Kent explained that the enterprise agreement related to a contract for the provision of public bus services in Western Australia that the applicant had successfully tendered for and which is due to commence in early 2015. He also said that the transfer of business provisions were not applicable as the assets were owned by a third party. I am satisfied that the Agreement covers a genuine new enterprise and the employer does not currently employ any persons. Mr Dawson supported the submissions of the applicant. I am satisfied that the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work performed under the Agreement (s 187(5)(a)).

[4] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 182, 186 and 187, in so far as relevant to this application, have been met. In particular, pursuant to s 187(5)(b), I am satisfied that the approval of the Agreement is in the public interest. Accordingly, I approve a greenfields enterprise agreement known as the Swan Transit Services (South West) Pty. Ltd. Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 24 November 2014 and have a nominal expiry date of 23 November 2018.

DEPUTY PRESIDENT

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