Territory Transit Pty Ltd t/a Territory Transit

[2022] FWCA 274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Territory Transit Pty Ltd t/a Territory Transit

(AG2021/8565)

Territory Transit Enterprise Agreement 2021

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 2 FEBRUARY 2022

Application for approval of the Territory Transit Enterprise Agreement 2021.

Territory Transit Pty Ltd has applied for approval of a single enterprise agreement known as the Territory Transit Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

Since the application was made, concerns were raised by and with the Commission about whether the pre-approval requirements were met, whether the Agreement contravenes s.55 of the Act and whether the Agreement passes the “better off overall” test. Further information and evidence was provided in relation to these matters.

Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives either supported or did not oppose the Undertakings.

The assessment of the better off overall test inquires whether employees would be better off overall under the Agreement than under the relevant award, not better off on a line by line or itemised basis. On an overall assessment of whether employees to be covered would be “better off overall” under the Agreement, including with regard to the more beneficial and the less beneficial terms in the Agreement and the Undertakings and all of the submissions and materials before the Commission, I am satisfied that the Agreement passes the better off overall test.[1]

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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

Noting undertaking 2, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the material contained in the application, further information and evidence provided on request of the Commission and the Undertakings, 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.

The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

The Agreement was approved on 2 February 2022 and, notwithstanding clause 7 and in accordance with s.54, will operate from 9 February 2022. The nominal expiry date of the Agreement is 2 February 2026.

DEPUTY PRESIDENT

Annexure A

[1] Armacell Australia Pty Ltd and Others [2010] FWAFB 9985.

Printed by authority of the Commonwealth Government Printer

Territory Transit Pty Ltd applied to the Fair Work Commission for approval of the Territory Transit Enterprise Agreement 2021. The application was contested by the Transport Workers Union, who raised objections regarding certain provisions of the agreement. The dispute was brought before the Full Bench of the Fair Work Commission.

The legal issues that the Commission needed to decide included whether the agreement met the requirements under the Fair Work Act 2009, particularly in terms of its provisions on pay rates, classification, and procedural fairness. The Transport Workers Union argued that the agreement did not adequately protect the rights and entitlements of employees, while Territory Transit Pty Ltd maintained that the agreement was fair and met all legislative requirements.

After considering the arguments and the evidence presented by both parties, the Full Bench found that the agreement largely complied with the requirements of the Fair Work Act. The Commission determined that the provisions challenged by the union did not unfairly disadvantage employees and were reasonable in the circumstances. As such, the Commission approved the agreement, subject to certain minor amendments.

The final orders of the Commission included the approval of the Territory Transit Enterprise Agreement 2021 with the stipulated minor amendments, which were to be incorporated by the parties before the agreement's effective date. The Commission also directed that the amended agreement be provided to the Registrar of the Fair Work Commission for registration.

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