Transfield Services (Australia) Pty Ltd

[2014] FWCA 2348

[2014] FWCA 2348

FAIR WORK COMMISSION

DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2014/682)

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD AND TRANSPORT WORKERS' UNION SA BUSES ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 APRIL 2014

Application for approval of the Transfield Services (Australia) Pty Ltd and Transport Workers' Union SA Buses Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Transfield Services (Australia) Pty Ltd t/as Light City Buses (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Transfield Services (Australia) Pty Ltd and Transport Workers’ Union SA Buses Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 590 employees who are employed as bus operators, bus cleaners, refuellers and coordinators in South Australia. 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 11 September 2013, and voting for the Agreement’s approval took place between 20 and 21 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 339 of the 577 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Hope, Industrial Relations Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Hopesaid that the Agreement does provide for one term that is less beneficial in that it does not provide for an additional week of leave for shift work, due to the Company’s unique rostering arrangements. However, the rates of pay under the Agreement are significantly higher than those under the Award. Rates of pay are to be increased by 3% or in accordance with the Department of Planning, Transport and Infrastructure’s PTD Index for the previous September Quarter, whichever is the higher, on 1 January 2015 and 1 January 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 32 and 26 respectively, and a disputes resolution procedure at clause 24 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 April 2014, Mr D Hope appeared for the applicant and Mr E Lawrie and Mr S McIntosh 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 Hope 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. Mr Hope explained that the extra week’s leave for shift workers had not been included in the previous enterprise agreement covering these employees. The Company’s view was that these employees effectively work rostered overtime and are not shift-workers in the traditional sense. Mr Lawrie supported the submissions of Mr Hope and confirmed the Union’s view that the Agreement met the BOOT.

[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 Transfield Services (Australia) Pty Ltd and Transport Workers’ Union SA Buses Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 14 April 2014 and have a nominal expiry date of 31 December 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE407618  PR549456>