Transdev John Holland Buses (NSW) Pty Ltd Summary

[2022] FWCA 1965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Transdev John Holland Buses (NSW) Pty Ltd

(AG2022/1635)

TJHB Bus Operations Agreement 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER MATHESON	SYDNEY,16 JUNE 2022

Application for approval of the TJHB Bus Operations Agreement 2022.

An application has been made for approval of an enterprise agreement known as the TJHB Bus Operations Agreement 2022 (Agreement). The application was made by Transdev John Holland Buses (NSW) Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Australian Rail, Tram and Bus Industry Union, 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 June 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Transdev John Holland Buses (NSW) Pty Ltd applied for approval of the TJHB Bus Operations Agreement 2022. The applicant sought approval of the Agreement under section 185 of the Fair Work Act 2009. The applicant is a bus operations provider within the passenger vehicle transport (non-rail) industry. The Agreement is a single enterprise agreement and, if approved, will apply to employees of the applicant. The Australian Rail, Tram and Bus Industry Union, as a bargaining representative, has indicated that it wishes for the Agreement to cover it, and the Commissioner has noted that the Agreement does indeed cover the organisation. The application is for the Agreement to operate from 23 June 2022 and expire on 31 December 2025.

The legal issues before the Commissioner were whether the Agreement complied with the requirements of the Fair Work Act 2009, particularly sections 186, 187, 188 and 190. Additionally, the Commissioner needed to determine if certain provisions of the Agreement were inconsistent with the National Employment Standards and, if so, whether the more beneficial entitlements of the NES would prevail. The Commissioner was also required to consider the written undertakings provided by the applicant and assess their effect on the Agreement.

The Commissioner found that certain provisions of the Agreement were inconsistent with the NES but was satisfied that the more beneficial entitlements of the NES would prevail where there was an inconsistency. The Commissioner accepted the written undertakings provided by the applicant, which stated that they were not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The Commissioner noted that no objections were raised by any bargaining representative. Consequently, the Commissioner was satisfied that all relevant requirements of the Fair Work Act 2009 were met. The Agreement was approved and will operate from 23 June 2022 until 31 December 2025.

The Commissioner approved the TJHB Bus Operations Agreement 2022 and directed that it would operate from 23 June 2022 until 31 December 2025. The Commissioner also accepted the written undertakings provided by the applicant and directed that the more beneficial entitlements of the NES would prevail where there was an inconsistency with the Agreement.

Transdev John Holland Buses (NSW) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established