Transit Australia Group Pty Ltd T/A Capricorn Sunbus

[2019] FWCA 5053

[2019] FWCA 5053

FAIR WORK COMMISSION

DECISION

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

Transit Australia Group Pty Ltd T/A Capricorn Sunbus
(AG2019/881)

SUNBUS - CAPRICORN COAST - ENTERPRISE AGREEMENT 2019

Passenger vehicle transport (non-rail) industry
COMMISSIONER SPENCER	BRISBANE, 19 JULY 2019

Application for approval of the Sunbus - Capricorn Coast - Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Sunbus – Capricorn Coast – Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transit Australia Group Pty Ltd T/A Capricorn Sunbus (the Applicant). The Agreement is a single enterprise agreement.

[2] It is noted that a concern arose over the definition of a shiftworker as included in clause 13.1(g) of the Agreement for the purposes of the National Employment Standards (NES). The question arose as to whether the Agreement’s qualification of a Shiftworker who is ‘regularly rostered to work Sundays and Public Holidays’ as one who works ‘at least 34 Sundays and 6 Public Holidays’ was more onerous than clause 24.2 of the Passenger Vehicle Transportation Award 2010. In providing submissions on this point, the Applicant identified the case of M O’Neill v Roy Holdings Pty Ltd 1which concerned a dispute under the relevant Award in relation to annual leave entitlements for a Shiftworker. In that matter it was held that an employee regularly works on Sundays and public holidays under the Passenger Vehicle Transportation Award 2010 ‘if they have worked at least 34 Sundays and 6 public holidays in a year’. Given this interpretation of the Award, I am satisfied that the inclusion of such a definition of a Shiftworker for the purposes of the NES is appropriate.

[3] Subject to concerns that have been addressed by way of undertakings, 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.

[4] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[5] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] As clause 43 of the Agreement does not meet the requirements of s. 203 of the Act, pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

•  Clause 16.4 – Abandonment of Employment

However, noting clause 1.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 July 2019. The nominal expiry date of the Agreement is 28 February 2023.

COMMISSIONER

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 1   [2015] FWC 2461 at [35]