DECISION

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

Transdev Melbourne Pty Ltd
(AG2014/10747)

TRANSDEV MELBOURNE PTY LTD BUS DRIVER ENTERPRISE AGREEMENT 2014 - 2018

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 JANUARY 2015

Application for approval of the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014 - 2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Transdev Melbourne Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014 - 2018 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 1,005 employees who are employed as Bus Drivers across Melbourne, Victoria. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 18 December 2013 and voting for the Agreement’s approval took place between 26 and 28 November 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 486 of the 823 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 December 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Singe, Managing People and Culture - Employee Relations, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Workers (Passenger Vehicles) Award 2002 [AP818060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Singesaid that the Agreement does provide for a reduced entitlement to penalty rates for work performed late at night and early in the morning. However, the Agreement provides for higher rates of pay, a split shift allowance of 9%, more generous penalty rates for work performed on Christmas Day, Good Friday and Saturdays. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 16 and 18 respectively, and a disputes resolution procedure at clause 15 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 22 December 2014, Ms A Singe appeared Ms A McKinney for the applicant and Mr H Smith for the Union. Ms Singe outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that base rates of pay are to be increased by 1% on 1 January 2016, 1 January 2017 and 1 January 2018 and also in accordance with movements in the CPI on 1 July of each year until the nominal expiry date of the Agreement. Mr Smith supported the submissions of Ms Singe. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014 - 2018.Pursuant to s 54 of the Act, the Agreement shall operate from 29 December 2014 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Transdev Melbourne Pty Ltd was the subject of an application before the Fair Work Commission (FWC) for the approval of the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014-2018. The application was brought by Transdev Melbourne Pty Ltd, an employer, against its employees, represented by the Transport Workers Union. The dispute centred on whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009. The court was required to determine if the agreement complied with the provisions for procedural fairness and substantive fairness, including the 'better off overall test' (BOOT) which ensures that employees are not worse off financially by being subject to the agreement.

The legal issues before the FWC included whether the agreement was made in good faith, whether it was properly negotiated, and if it met the BOOT. Additionally, the court had to consider if the agreement contained provisions that were contrary to public policy or were otherwise invalid. The FWC had to examine if the agreement adequately addressed the needs and interests of the employees and whether it provided for fair and reasonable terms of employment. The court also had to ensure that the agreement did not include any provisions that could potentially harm employees or contravene any statutory rights.

In its decision, the FWC found that the agreement was made in good faith and was properly negotiated. The commission determined that the agreement met the BOOT, as employees would be better off overall under the new terms compared to the existing conditions. The FWC concluded that the agreement contained fair and reasonable terms of employment and did not contravene any statutory rights or public policy. The FWC approved the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014-2018, recognising it as a valid and enforceable agreement.

Transdev Melbourne Pty Ltd

DECISION

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