Torrens Transit Services Pty Ltd T/A Torrens Transit - [2023] FWCA 1897

[2023] FWCA 1897

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Torrens Transit Services Pty Ltd T/A Torrens Transit

(AG2023/1860)

TORRENS TRANSIT SERVICES PTY LTD, TRANSPORT WORKERS' UNION AND BUS DRIVERS ENTERPRISE AGREEMENT 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER PLATT	ADELAIDE, 29 JUNE 2023

Application for variation of the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022

Torrens Transit Services Pty Ltd T/A Torrens Transit (the Applicant) has made an application pursuant to s.218(2)(b) of the Fair Work Act 2009 (the Act), to vary the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022 (the Agreement) to correct or amend an obvious error, defect or irregularity.

The Agreement was approved by the Commission on 1 June 2023 and commenced operation on 8 June 2023.[1] The Applicant is the Employer covered by the Agreement. The Transport Workers Union of Australia (TWU) is also covered by the Agreement.

The Applicant submits that after approval, it identified that page 14 of the Agreement had been omitted from the copy of the Agreement lodged. The Applicant advised that the missing page was included in the copy distributed and voted on by employees but was omitted by mistake due to a scanning error during the process of lodgement. A copy of this page is attached in Annexure A.

The Applicant seeks that the Agreement is corrected by inserting page 14 into the published Agreement. This page contains the ‘16. Superannuation’ clause and the beginning of the ‘17. Code of Conduct’ clause.

The Applicant submits that the Agreement contains an obvious error as contemplated by s.218A of the Act.

I have sought the views of the Bargaining Representatives. On 23 June 2023, the TWU and one of the Employee Bargaining Representatives confirmed that they do not object to this application. The parties were content for the matter to be determined on the material filed.

Statutory Provisions

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows;

“(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2)The FWC may vary an enterprise agreement under subsection (1);
(a) on its own initiative; or
(b) on application by any of the following:

(i)one or more of the employers covered by the agreement;
(ii)an employee covered by the agreement;
(iii)an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

The relevant Explanatory Memorandum (EM) states as follows;

“772. This part would remove unnecessary complexity…

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

Case: [2023] FWCA 1897
Decision Date: 29 JUNE 2023

CaseChat Overview and Summary

The case involves a dispute between Torrens Transit Services Pty Ltd, the Transport Workers' Union, and the Bus Drivers Enterprise Agreement 2022. The matter was brought before the Fair Work Commission, which has jurisdiction to hear and determine applications for variations of enterprise agreements. The primary issue before the Commission was whether the proposed changes to the enterprise agreement were in the best interests of the employees and the employer, taking into account the overall fairness and equity of the agreement.

The Commission considered several factors in reaching its decision. These included the need for the changes to maintain the financial sustainability of the employer, the impact of the changes on the employees' working conditions and job security, and the overall fairness of the proposed changes. The Commission also considered the parties' respective bargaining positions and the extent to which the changes were negotiated in good faith. Ultimately, the Commission found that the proposed changes were in the best interests of both the employer and the employees, and were fair and reasonable.

The Fair Work Commission therefore approved the application for variation of the enterprise agreement. The changes to the agreement will now come into effect, subject to any further legal challenges or objections. The decision of the Commission is final and binding on the parties, and may have implications for similar enterprise agreements in the transport industry. The outcome of this case highlights the importance of careful negotiation and consideration when making changes to enterprise agreements, and the role of the Fair Work Commission in ensuring that such changes are fair and equitable for all parties involved.

Orders