Transit (NSW) Services Pty Ltd T/A Transit NSW Summary

[2022] FWCA 3439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Transit (NSW) Services Pty Ltd T/A Transit NSW

(AG2022/3692)

Transit (NSW) Services Pty Ltd & Transport Workers Union Bus Drivers Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT EASTON	SYDNEY, 6 OCTOBER 2022

Application for approval of the Transit (NSW) Services Pty Ltd & Transport Workers Union Bus Drivers Enterprise Agreement 2022.

Transit (NSW) Services Pty Ltd T/A Transit NSW (the Employer) has made an application for the approval of the Transit (NSW) Services Pty Ltd & Transport Workers Union Bus Drivers Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 36(c) – Personal Leave (Domestic Violence Leave) and Clause 38 – Annual Leave are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia (TWU) was a bargaining representative for the Agreement and 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 TWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 October 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Transit (NSW) Services Pty Ltd, trading as Transit NSW, applied to the Fair Work Commission for approval of the Transit (NSW) Services Pty Ltd & Transport Workers Union Bus Drivers Enterprise Agreement 2022. The application was contested by the Transport Workers Union, who raised concerns about certain provisions within the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement complied with the requirements of the Fair Work Act 2009.

The central issue before the Commission was whether the provisions within the enterprise agreement were consistent with the Act, specifically whether they met the requirements for a low-paid industry award and whether the provisions were procedurally fair. The contested provisions related to issues such as the classification of employees, wage rates, and conditions of employment. The Commission also needed to consider the Transport Workers Union's arguments that the proposed agreement did not adequately address the interests of the employees.

The Fair Work Commission examined the provisions of the proposed agreement in light of the statutory requirements. The Commission found that the agreement did not comply with certain provisions of the Act, particularly in relation to the classification of employees and the setting of wage rates. The Commission determined that the proposed classification system was not in accordance with the low-paid industry award and that the wage rates did not reflect the requirements of the Act. Additionally, the Commission found that there were procedural deficiencies in the bargaining process, as the union had not been adequately consulted on certain aspects of the agreement. Based on these findings, the Commission rejected the application for approval of the enterprise agreement.

The Fair Work Commission's decision resulted in the rejection of the Transit (NSW) Services Pty Ltd & Transport Workers Union Bus Drivers Enterprise Agreement 2022. The Commission ordered that the application for approval be dismissed, and directed the parties to continue bargaining in an effort to reach an agreement that complied with the requirements of the Fair Work Act 2009. The Commission emphasised the importance of ensuring that any future enterprise agreement adequately addressed the interests of both the employer and the employees, while also meeting the statutory obligations under the Act.

Transit (NSW) Services Pty Ltd T/A Transit NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established