Transit (NSW) Services Pty Ltd

[2013] FWCA 4974

[2013] FWCA 4974

FAIR WORK COMMISSION

DECISION

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

Transit (NSW) Services Pty Ltd
(AG2013/1742)

TRANSIT (NSW) SERVICES PTY LTD AND THE TRANSPORT WORKERS' UNION OF AUSTRALIA FAIR WORK AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 JULY 2013

Application for approval of the Transit (NSW) Services Pty Ltd and the Transport Workers' Union of Australia Fair Work Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Transit (NSW) Services Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise greenfields agreement to be known as the Transit (NSW) Services Pty Ltd and the Transport Workers’ Union of Australia Fair Work Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union (the ‘Union’). The Agreement is to cover employees of the applicant who are to be principally employed as Bus Drivers. 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] Pursuant to s 182(3) of the Act, the Agreement was made between the applicant and the Union on 14 June 2013. The application for approval of the Agreement was lodged on 22 June 2013, thereby satisfying s 185(4) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F20) Mr Michael Kent, General Counsel, 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 Kentsaid that the Agreement does provide for some conditions that are less beneficial than those under the reference instrument, including a slightly lower meal allowance, a lack of provision for First Aid Allowance and the removal of triple time penalty rates for work performed on Easter Saturday. However, the Agreement provides for a number of terms and conditions that are more beneficial than or in excess of those under the reference instruments, including higher rates of pay, a higher Articulated Bus Allowance, more generous redundancy entitlements, 25% annual leave loading and an allowance for issuing tickets or collecting fares. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 33 and 32 respectively, and a disputes resolution procedure cl 31 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 July 2013, Mr D Ey, Solicitor,appeared with Mr M Kent of the applicant and Mr A Guy for the Union. The Union had filed a Declaration in relation to the application (Form 21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement. For the purpose of s 187(5)(a), I am satisfied that the Union is entitled to represent the interests of the majority of the employees to be covered by this agreement. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Ey 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. He explained that the applicant is a newly formed company, having been registered in December 2012 and that it had been successful in winning a contract to operate public bus services, which are to commence in October 2013. Mr Guy supported Mr Ey’s submissions.

[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 186, 187 and 193, in so far as relevant to this application, have been met. In particular, I am satisfied that it is in the public interest to approve the Agreement. Accordingly, I approve a greenfields enterprise agreement known as the Transit (NSW) Services Pty Ltd and the Transport Workers’ Union of Australia Fair Work Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 18 July 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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