Transdev NSW South Pty Ltd T/A Transdev NSW

[2016] FWCA 7416

[2016] FWCA 7416

FAIR WORK COMMISSION

DECISION

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

Transdev NSW South Pty Ltd T/A Transdev NSW
(AG2016/5744)

TRANSDEV NSW BUS ENTERPRISE AGREEMENT 2015-2018

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 25 OCTOBER 2016

Application for approval of the Transdev NSW Bus Enterprise Agreement 2015-2018

[1] An application has been made by Transdev NSW South Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Transdev NSW Bus Enterprise Agreement 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement was nominated as being a multi-enterprise agreement.

[2] The application stated that the agreement sought to cover employees at both Transdev NSW South Pty Ltd and Transdev NSW Pty Ltd. Upon enquiry, Ms Emma Clements, General Manager of People and Culture for the applicant, indicated that she believed that the companies were carrying on a common enterprise. Ms Clements believed this was the case because Transdev NSW South Pty Ltd and Transdev NSW Pty Ltd traded under the same name, shared logos and branding, were centrally managed and that one company was a subsidiary to the other.

[3] In order for the agreement to cover both Transdev NSW South Pty Ltd and Transdev NSW Pty Ltd, the employers must qualify as a single interest employer.

[4] S.172(2) of the Act provides that an employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement). In particular, s.172(5) of the Act states that two or more employers are single interest employers if:

(a) The employers are engaged in a joint venture or common enterprise; or

(b) The employers are related bodies corporate; or

(c) The employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

[5] Mason J in Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission (1981) 148 CLR 121, defined a common enterprise. At paragraph 133, Mason J stated:

An enterprise may be described as common if it consists of two or more closely connected operations on the footing that one part is to be carried out by A and the other by B, each deriving a separate profit from what he does, even though there is no pooling or sharing of receipts of profits. It will be enough that the two operations constituting the enterprise contribute to the overall purpose that unites them. There is then an enterprise common to both participants and, accordingly, a common enterprise.

[6] I am satisfied that the employers listed in clause 2 of the Agreement are single interest employers pursuant to s.172(5)(a) of the Act, in that they are employers engaged in a common enterprise. In the alternative, the employers listed in clause 2 of the Agreement are likely to be defined as ‘related bodies corporate’ within the meaning of s.50 of the Corporations Act 2001.

[7] The Agreement covers employees who are employed as light rail drivers, operational controllers, authorised officers, customer service officers and trainers. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[8] The Transport Workers Union (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) stating that it supported the approval of the Agreement.

Consultation clause

[9] The consultation clause in the Agreement does not meet the requirements under s.205 of the Act, because it does not provide for a consultation process in relation to a change to regular rosters or ordinary hours of work.

[10] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement and is attached at Annexure A of this decision.

Public holiday pay

[11] The Commission wrote to the applicant with the concern that clause 35(i) of the Agreement, which allows the employer to withhold public holiday pay from an employee who is absent from employment on the working day before or after the public holiday, may be detrimental when compared with s.116 of the National Employment Standards (NES).

[12] The applicant has responded by providing an undertaking that the term will not be applied.

Shift workers

[13] The Commission wrote to the applicant noting that the Agreement definition of a shift worker is not consistent with the definition under the Passenger Vehicle Transportation Award 2010, being the Award that covers the employees who would be covered by the Agreement. The Commission was concerned that the under the Agreement shift workers may not be entitled to the additional week of annual leave pursuant to s.87(1)(b) of the Act.

[14] The applicant responded by providing an undertaking that if the business engages shift workers, the definition of shift worker under the Award will be applied.

Better off over all test (BOOT)

[15] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are overall more beneficial than under the Passenger Vehicle Transport Award 2010 (the Award), which is the relevant instrument for the purposes of the BOOT. Under the Agreement some Award entitlements have been reduced, including the casual loading, however the Agreement provides base rates of pay that are significantly higher for all classifications under the Agreement, an annual leave loading of 25% and increased minimum engagements for casual employees on weekends and public holidays.

Conclusion

[16] Taking into account the higher rates of pay and other more beneficial entitlements under the Agreement, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[17] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure B. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[18] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

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

[20] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2018.

DEPUTY PRESIDENT

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Annexure A

Annexure B