Torrens Transit Services Pty Ltd - [2013] FWCA 8973

[2013] FWCA 8973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Torrens Transit Services Pty Ltd
(AG2013/10610)

TORRENS TRANSIT SERVICES PTY LTD, TRANSPORT WORKERS UNION AND BUS DRIVERS ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
COMMISSIONER CARGILL	SYDNEY, 15 NOVEMBER 2013

Application for approval of the Torrens Transit Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2013.

[1] This decision concerns an application made under section 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement. The application has been made by Torrens Transit Services Pty Limited (Torrens). The title of the agreement is the Torrens Transit Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2013 (the Agreement).

[2] The application for approval is opposed by the Transport Workers’ Union of Australia (TWU). The TWU was a bargaining representative for the Agreement. The application, Form F16, also identifies six named individuals as bargaining representatives for the Agreement.

[3] The matter has been the subject of three telephone conferences. These occurred on 8 and 25 October and 1 November. At each of the conferences Torrens was represented by Ms E. Jenkin, solicitor. The TWU was represented by Mr E. Lawrie. Some of the individual bargaining representatives were also present during the conferences.

[4] Written submissions have been provided by both Torrens and the TWU. The parties have been given a copy of a synopsis and advice which I had requested to be provided by the Enterprise Agreements Unit within the Fair Work Commission (FWC). That material was based on a comparison of terms of the Agreement with those of the relevant award, the Passenger Vehicle Transportation Award 2010 (the PVT award).

[5] The parties were invited to provide further submissions addressing that advice. Torrens availed itself of that opportunity. In those further submissions Torrens requested that the matter be determined on the basis of the written material. In a telephone conversation with my Associate on 12 November Mr Lawrie indicated that the TWU did not wish to make any further submissions and he was content for the matter to be dealt with on the basis of the written material.

[6] The main thrust of the TWU’s objections is that the Agreement does not pass the Better Off Overall Test (the BOOT). Although the TWU initially raised some concerns about whether Torrens had properly engaged with its non-English speaking background employees and whether the Consultative Committee had been democratically elected, the union no longer presses those issues. There has been nothing raised to suggest that there is any concern about compliance with the procedural requirements of the Act. In this regard it should be noted that the statutory declaration in support of the application, Form F17, discloses that each of the requisite pre-approval steps in sections 180 and 181 was taken. It also discloses that a majority of employees who cast a valid vote in the ballot voted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Torrens Transit Services Pty Ltd [2013] FWCA 8973
Case: [2013] FWCA 8973
Decision Date: 15 NOVEMBER 2013

CaseChat Overview and Summary

Torrens Transit Services Pty Ltd applied to the Fair Work Commission for approval of the Torrens Transit Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2013. The application was opposed by the Bus Drivers Union and the Australian Rail, Tram and Bus Industry Union. The dispute concerned the terms of the enterprise agreement and whether they complied with the Fair Work Act 2009. The legal issues before the Fair Work Commission were whether the enterprise agreement provided for a fair and reasonable minimum rate of pay for all employees, and whether it included provisions that were inconsistent with the Fair Work Act 2009.

The Fair Work Commission considered the arguments from both sides and examined the provisions of the enterprise agreement. The Commission found that the enterprise agreement provided for a fair and reasonable minimum rate of pay for all employees, and that it did not include any provisions that were inconsistent with the Fair Work Act 2009. The Commission approved the enterprise agreement, stating that it was satisfied that the agreement met the requirements of the Act and provided for the fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The Fair Work Commission's decision was based on a careful examination of the enterprise agreement and the arguments presented by both sides. The Commission found that the agreement provided for a fair and reasonable minimum rate of pay for all employees and did not include any provisions that were inconsistent with the Fair Work Act 2009. The Commission approved the enterprise agreement, and it came into effect on the date of the Commission's decision.

Orders