DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transit (NSW) Services Pty Ltd
(AG2021/6177)

TRANSIT (NSW) SERVICES ENGINEERING STAFF ENTERPRISE AGREEMENT 2021

Vehicle industry
DEPUTY PRESIDENT DEAN	CANBERRA, 23 JULY 2021

Application for approval of the Transit (NSW) Services Engineering Staff Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Transit (NSW) Services Engineering Staff Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transit (NSW) Services Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), being a bargaining representative for the Agreement, has given notices 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.

[5] I note that clause 15.2(c) (Personal Leave) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Applicant sought to correct a typographical error in Appendix 1 of the Agreement relating to the payment of first aid allowance and filed an amended Agreement page. The AMWU consent to the proposed amendment. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2021. The nominal expiry date of the Agreement is 25 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Transit (NSW) Services Pty Ltd was the subject of an application before the Fair Work Commission for approval of the Transit (NSW) Services Engineering Staff Enterprise Agreement 2021. The applicant sought to have the agreement registered under the Fair Work Act 2009, which would give it legal effect. The dispute centred on the terms and conditions outlined in the proposed agreement, which were contested by various stakeholders including employee representatives and the company.

The primary legal issues for the Commission to address were whether the agreement complied with the procedural requirements of the Fair Work Act, and whether it met the "better off overall test" as stipulated by the Act. The Commission needed to determine if the agreement provided employees with outcomes that were no less favourable than the applicable award or safety net. Additionally, the Commission had to assess whether the agreement was genuinely negotiated and whether it contained the necessary minimum terms as prescribed by the Act.

In examining the application, the Commission found that the agreement was procedurally valid and met the requirements set out in the Act. The Commission concluded that the agreement satisfied the better off overall test, as it offered employees terms and conditions that were at least as favourable as those provided by the relevant award. The Commission also found that the agreement had been genuinely negotiated and included all the necessary minimum terms. As a result, the Commission approved the Transit (NSW) Services Engineering Staff Enterprise Agreement 2021, and it was registered under the Fair Work Act 2009.

Transit (NSW) Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established