Transdev Sydney Ferries Pty Ltd Trading AS Transdev Sydney Ferries

[2025] FWCA 2334

[2025] FWCA 2334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Transdev Sydney Ferries Pty Ltd Trading AS Transdev Sydney Ferries

(AG2025/1901)

Transdev Sydney Ferries Salaried and Senior Staff Agreement 2024

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 14 JULY 2025

Application for approval of Transdev Sydney Ferries Salaried and Senior Staff Agreement 2024

Introduction

Transdev Sydney Ferries Pty Ltd Trading as Transdev Sydney Ferries (the Employer) has made an application for approval of an enterprise agreement known as the Transdev Sydney Ferries Salaried and Senior Staff Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 9 October 2024 and the Agreement was made on 5 June 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

The NERR was erroneous in that the form in which it was provided to employees on 9 October 2024 was the pre-reform version. The Employers provided submissions that this matter constituted a minor technical error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, that this matter constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) Precedence Term

Clause 41.4 of the Agreement states that “All employees will take their Annual Leave each year, unless authorised by TDSF to accumulate such leave from year to year. A maximum of 40 days (non-rostered employees) or 50 days (rostered employees) Annual Leave per employee can be held at any one time unless authorised otherwise by the General Manager, People and Culture.”

Clauses 57 and 61 of the Agreement provide for notice periods for termination under the Agreement. These clauses provide for four weeks’ notice subject to probationary periods and an additional weeks’ notice for employees aged 45 and over, however the completed service requirement is 5 or more years whereas s117(3)(b) of the Act only requires 2 years continuous service for employees over 45 to be entitled to the additional week of notice.

Clause 63 of the Agreement provides that where an employee is absent from the workplace for 3 consecutive days and has not notified TDSF of their absence or likely return date, TDSF will direct the employee to return to work within 7 days. Where the employee then fails to either notify TDSF or return to work as directed, they will be deemed to have abandoned their employment, and their employment will be terminated with no further notice or payments except for accrued entitlements to the date of abandonment. As such this clause appears to provide that employees deemed to have abandoned their employment will not be afforded their minimum notice of termination entitlement as per s117(3) of the Act.

These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 5.4 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

BOOT Issues

The Commission wrote to the parties seeking a response to a better off overall test (BOOT) concern in relation to the Agreement.

I have had regard to the submissions of the Employer in considering whether the Agreement passes the BOOT. It is on the basis of the acceptance of the submissions that I consider this BOOT concern to be satisfied.

Section 183 Bargaining Representatives

The Australian Municipal, Administrative, Clerical and Services Union (ASU), Construction, Forestry and Maritime Employees Union (MUA), Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers’ Union (AMOU) being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them.

In accordance with s.201(2), I note that the Agreement covers the ASU, MUA, AIMPE and AMOU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2025. The nominal expiry date of the Agreement is 14 August 2028.

Variation

Section 218A of the Act allows the Commission to correct or amend obvious errors, defects, or irregularities in an enterprise agreement (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

It is significant in understanding the context of s.218A that the Commission can vary an agreement on application by an employer covered by the agreement (s218A(2)(b)(i)). The power to vary an agreement under s218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity – and no further.

On 30 June 2025, the Employer lodged a Form F1 seeking to correct the following errors contained in the agreement:

1. The figure provided in the wage table at Attachment A for Senior Staff Grade E, Level 3 for the first Full Pay period June 2028 be amended to $197,074.

2. The figure provided in the wage table at Attachment A for Authorised Officer – Grade 3 for the first Full Pay period June 2028 be amended to $86,428

3. The figure provided in the wage table at Attachment A for Senior Authorised Officer for the first Full Pay period June 2028 be amended to $89,428.

The Employer submitted that the incorrect figures provided above do not reflect the agreed increase prescribed in the Agreement, and therefore constitute obvious errors.

The Commission sought the views of relevant union parties and was advised that none opposed the Employer’s application pursuant to s218A of the Act.

I am satisfied that the errors listed in [16] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement in accordance with the application made by the Employer (PR789620). The variation will operate from the date that the Agreement commences.

The Agreement attached to this Decision is the Agreement as varied and will operate from 21 July 2025.

DEPUTY PRESIDENT