Torrens Transit Services Pty Ltd T/A Torrens Transit Services Pty Ltd

[2024] FWCA 3064

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 Services Pty Ltd

(AG2024/2523)

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

(ODN AG2023/1298) [AE520211]

Passenger vehicle transport (non rail) industry
COMMISSIONER PLATT	ADELAIDE, 22 AUGUST 2024

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 Services Pty Ltd (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 29 June 2023 and commenced operation on 6 July 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 and the TWU have reached a consent agreement for the applicable rates for FT1 employees contained in ‘Appendix 1 – Wage Details’ (row 8, columns 7 & 8) to be increased. The Applicant will also provide backpay to FT1 employees from the Agreement’s commencement to the date of variation within 14 days.

The Applicant seeks that the Agreement be corrected by way of an Order.

I have sought the views of the Bargaining Representatives and TWU. The TWU have consented to the application. The parties were content for the matter to be determined based on the material filed.

The error, which was not identified until after the Agreement was approved, is an error of substance and would therefore fall within the scope of s.218A(1).
My determination to vary the Agreement is in accordance with the requirements of s.218A(2)(b) of the Act. The variation sought will operate from 22 August 2024. An order giving effect to this Decision will be separately issued.[2]

COMMISSIONER

[1] [2023] FWCA 1897.

[2] PR778551.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Torrens Transit Services Pty Ltd has applied to the Fair Work Commission to vary the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022. The applicant seeks to correct an error in the agreement's rates for FT1 employees. The Transport Workers' Union has consented to the application, and both parties were content for the matter to be decided based on the material filed. The error, which was not identified until after the agreement was approved, is considered an error of substance, falling within the scope of s.218A(1) of the Fair Work Act 2009. The commission must determine whether the variation sought is appropriate under s.218A(2)(b) of the Act.

The court was required to determine whether the error in the enterprise agreement constituted a defect or irregularity warranting variation under the Fair Work Act 2009. Specifically, the court needed to assess whether the error was substantive and whether it warranted variation under s.218A(2)(b) of the Act. The court also needed to consider the consent of the Transport Workers' Union and whether the parties were content for the matter to be determined based on the material filed. The court had to ensure that the variation would correct the error without unfairly disadvantaging either party.

The commission found that the error in the enterprise agreement was substantive and fell within the scope of s.218A(1) of the Act. The commission determined that the variation sought by the applicant would correct the error and was in accordance with the requirements of s.218A(2)(b) of the Act. The commission took into account the consent of the Transport Workers' Union and the parties' agreement to determine the matter based on the material filed. The commission also noted that the error was not identified until after the agreement was approved, which justified the need for variation. The commission's determination to vary the agreement is based on the merits of the application and the provisions of the Act.

The commission ordered that the Torrens Transit Services Pty Ltd, Transport Workers' Union and Bus Drivers Enterprise Agreement 2022 be varied to correct the error in the rates for FT1 employees. The variation will operate from 22 August 2024. An order giving effect to this decision will be separately issued. The commission's decision ensures that the error in the enterprise agreement is corrected, and both parties can proceed with the amended agreement in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established