Transdev Sydney Pty Ltd

[2016] FWCA 7404

[2016] FWCA 7404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transdev Sydney Pty Ltd
(AG2016/5299)

TRANSDEV SYDNEY PTY LTD (LIGHT RAIL) - ENTERPRISE AGREEMENT 2015-2017

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 19 OCTOBER 2016

Application for approval of the Transdev Sydney Pty Ltd (Light Rail) - Enterprise Agreement 2015-2017

[1] An application has been made by Transdev Sydney Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Transdev Sydney Pty Ltd (Light Rail) - Enterprise Agreement 2015-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers employees of the applicant 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.

[3] The Australian Rail, Tram & Bus Industry Union (RTBU) was an employee organisation involved in the agreement making process as a bargaining representative. The RTBU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

Consultation clause

[4] 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.

[5] Pursuant to s.205(2) of the Act, the model flexibility 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.

Shift workers

[6] 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 (the Award), being the Award that covers the employees who would be covered by the Agreement. The Commission was concerned that 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.

[7] The applicant responded by providing an undertaking that the definition of a shift worker under the Award will be applied, and shift workers will be entitled to an additional week of annual leave in accordance with the National Employment Standards (NES).

Part time employees

[8] The Commission wrote to the applicant with the concern that the Agreement does not require the employer and part time employees to agree upon the hours and days of work at the commencement of a part time employee’s employment. This is a requirement under the Award.

[9] The applicant has provided an undertaking to address this concern. Under the Agreement part time employees will, upon commencement of employment, be provided with written confirmation of their roster pattern. Any variation to that pattern will be confirmed with the employee in writing, and I note that the model consultation clause applies when there is a change to regular rosters or ordinary hours of work.

Better off overall test (BOOT)

[10] 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 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 than the Award.

Conclusion

[11] 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

[12] The undertaking is taken to be a term of the Agreement and a copy is marked Annexure B. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. 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.

[13] The RTBU 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.

[14] 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.

[15] 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 1 November 2017.

DEPUTY PRESIDENT

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Annexure A

Annexure B