Transit Systems West Services Pty Ltd

[2023] FWCA 2560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Transit Systems West Services Pty Ltd

(AG2023/2505)

TRANSIT NSW (REGION 6), TRANSPORT WORKERS UNION, AND RAIL TRAM BUS UNION BUS DRIVERS ENTERPRISE AGREEMENT 2022

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 15 AUGUST 2023

Application for approval of the Transit NSW (Region 6), Transport Workers Union, and Rail Tram Bus Union Bus Drivers Enterprise Agreement 2022

Introduction

Transit Systems West Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Transit NSW (Region 6), Transport Workers Union, and Rail Tram Bus Union Bus Drivers Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 14 July 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings 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.

Section 183 Bargaining Representatives

The Transport Workers’ Union (TWU) and the Australian Rail, Tram and Bus Industry Union (RTBU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

In accordance with s.201(2), I note that the Agreement covers the TWU and the RTBU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 August 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission concerned an application by Transit Systems West Services Pty Ltd, Transit NSW (Region 6), the Transport Workers Union, and the Rail Tram Bus Union for the approval of the Bus Drivers Enterprise Agreement 2022. The application was brought under the Fair Work Act 2009, specifically targeting section 234, which allows for the registration of new or modified enterprise agreements. The primary dispute centered on whether the agreement met the statutory requirements for approval, including the provisions for pay, conditions, and dispute resolution mechanisms.

The legal issues before the Commission encompassed several key areas. Firstly, the Commission needed to determine whether the agreement was made in good faith and without coercion, as mandated by the Fair Work Act. Secondly, it had to assess whether the agreement provided for a fair and reasonable method of dispute resolution. Thirdly, the Commission examined if the agreement complied with the 'better off overall test', ensuring that the employees were not worse off financially by the terms of the agreement. Lastly, the Commission evaluated whether the agreement contained all the prescribed terms and conditions as required by the Act.

The Commission approached the application methodically, focusing on the provisions of the agreement and the evidence provided by the parties. The Commission found that the agreement was indeed made in good faith and without coercion, as the evidence demonstrated that the parties had engaged in genuine bargaining. Regarding the dispute resolution mechanism, the Commission accepted that the agreement provided for a fair and reasonable method. The 'better off overall test' was also met, as the Commission concluded that the employees would not be worse off financially under the new agreement. Finally, the Commission determined that the agreement contained all the prescribed terms and conditions, thereby satisfying the statutory requirements for approval.

Accordingly, the Fair Work Commission approved the Bus Drivers Enterprise Agreement 2022, finding it to be compliant with the Fair Work Act. The decision was made in light of the evidence and submissions presented by the parties, and the agreement was registered as required by section 234 of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established