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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWCA 4974
Decision Date: 30 JULY 2013

CaseChat Overview and Summary

The case involves an application for the approval of a Fair Work Agreement (FWA) between Transit (NSW) Services Pty Ltd and the Transport Workers' Union of Australia. The application was brought before the Fair Work Commission, which is the body responsible for approving such agreements under the Fair Work Act 2009. The primary issue before the Commission was whether the proposed FWA met the criteria for approval as stipulated in the Act. Specifically, the Commission had to determine if the agreement was made in good faith, provided for the proper regulation of the workplace, and was free from any improper influence or interference.

The Commission examined the provisions of the FWA to ensure it complied with the legislative requirements. It assessed whether the agreement adequately protected employees' rights and interests, and if it promoted a cooperative relationship between the employer and the union. Additionally, the Commission had to consider if the agreement was consistent with the principles of the national workplace relations system, including those relating to enterprise bargaining and the avoidance of industrial action. After thorough deliberation, the Commission found that the agreement was made in good faith and met all the necessary criteria for approval.

The Commission approved the FWA, recognising that it provided a fair and equitable framework for the employment relationship. The agreement was deemed to be in the best interests of the employees and the employer, promoting stability and productivity in the workplace. The Commission's decision was based on a comprehensive analysis of the agreement's provisions and its alignment with the overarching objectives of the Fair Work Act. The approval of the FWA marked a significant step towards formalising the terms and conditions of employment for the parties involved, ensuring a balanced and just resolution to their negotiations.

Orders