Torrens Transit Services Pty Ltd T/A Torrens Transit

[2023] FWCA 1587

[2023] FWCA 1587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Torrens Transit Services Pty Ltd T/A Torrens Transit

(AG2023/1298)

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

Passenger vehicle transport (non rail) industry
COMMISSIONER PLATT	ADELAIDE, 1 JUNE 2023

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

1. An application has been made for approval of an enterprise agreement known as the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Torrens Transit Services Pty Ltd T/A Torrens Transit (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 16 May 2023.

1. There are two National Employment Standards (NES) issues that require comment:

·        Compassionate leave: Clause 18.17 of the Agreement does not appear to provide compassionate leave for stillbirth/miscarriage consistent with s.104(1)(b) and (c) of the Act.

·        Redundancy: Clause 20.7(b) of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment with an associated company; or the employer obtains, or the employee received an offer of reasonable alternative employment with another organisation. However, the provision is not subject to an application to the Fair Work Commission in accordance with s.120 of the Act.

1. Clause 4.2 of the Agreement acts as an effective NES precedence clause, in that it states that “[i]t is not the intention of the parties that this Agreement operates in any way that is less favourable than the NES. If in a particular situation in this Agreement could be interpreted as providing a less favourable outcome to Employees, then the NES will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 18 May 2023. The undertaking deals with the following topics:

·        The Applicant undertakes that the definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·        The Applicant undertakes that, despite Clause 26.6(a) of the Agreement, the Employer or Employee may terminate the individual flexibility arrangement by giving no more than 28 days written notice to the other party to the arrangement.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 17 October 2026.

COMMISSIONER

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