Transdev Queensland Pty Ltd

[2014] FWCA 2938

[2014] FWCA 2938

FAIR WORK COMMISSION

DECISION

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

Transdev Queensland Pty Ltd
(AG2014/892)

TRANSDEV QUEENSLAND PTY LTD BUS OPERATOR ENTERPRISE AGREEMENT 2014 - 2016

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 MAY 2014

Application for approval of the Transdev Queensland Pty Ltd Bus Operator Enterprise Agreement 2014 - 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Transdev Queensland 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 Queensland Pty Ltd Bus Operator Enterprise Agreement 2014 - 2016 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’). The Agreement is to cover 152 employees who are engaged as Bus Operators in fulfilment of the applicant’s contract with the Queensland Government. 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 1 August 2013, and voting for the Agreement’s approval took place between 3 and 5 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 91 of the 135 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr F Calderwood, Commercial and Contracts Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Motor Drivers, etc., Award - Southern Division 2003 [AN140182] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Calderwoodsaid that the Agreement did provide for some terms and conditions that were less beneficial than those under the reference instruments, including a change in the circumstances in which a meal allowance is paid, the removal of some non-applicable allowances and the removal of the ability to take annual leave in advance of it being accrued, subject to agreement with the employer. However, the Agreement also provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay and longer minimum engagements. Rates of pay are to be increased on 1 January 2015 and 1 January 2016 in accordance with the Wage Price Index as published by the Australian Bureau of Statistics ABS Series Number 6345.0 Table 2, of the previous June to June quarters.Total hourly rates of pay excluding bonuses, All Sectors I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5.3 and 5.1 respectively, and a disputes resolution procedure at clause 5.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 29 April 2014, Mr F Calderwood appeared for the applicant and Ms M Cerrato for the Union. 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. Mr Calderwood 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.

[5] However, the Union had listed a number of matters under Item 5 of its Form F18 in relation to the definition of shift workers under the Agreement and Ms Cerrato noted that Shift Workers would be entitled to five, rather than four weeks of annual leave. The applicant subsequently provided an undertaking setting out that a Shift Worker is defined as an employee who is a seven day shift worker who is regularly rostered to work on Sundays and Public Holidays. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. The Union supported this undertaking and the approval of the Agreement.

[6] 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, 188, 190, 191 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Transdev Queensland Pty Ltd Bus Operator Enterprise Agreement 2014 - 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 6 May 2014 and have a nominal expiry date of 31 December 2016.

DEPUTY PRESIDENT

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