Enterprise Bargaining Agreement

Transport Workers’ Union of Australia v Transit (NSW) Services Pty Ltd [2022] FWC 2334 (link)

Case Summary

• This dispute is between the Transport Workers’ Union of Australia (the Union) and Transit (NSW) Services Pty Ltd (Transit NSW) arose after bus drivers took part in an industrial action and turned off their Opal card readers as part of a pay dispute. 
• The bus drivers who took part in the action argued that they were eligible to receive a daily allowance provided under their Enterprise Bargaining Agreement.
• But Transit (NSW) argued that the bus drivers who took part in the action were not entitled to the allowance because of the term in the agreement regarding “fare paying passengers”. According to Transit (NSW), this term meant that the passengers had to pay a fee, which they did not at the time of the action due to the Opal readers being turned off by the participating bus drivers.

Decision

• The Commission agreed with Transit (NSW), stating that the clause was “not ambiguous, uncertain or capable of more than one meaning.” 
• The bus drivers who took part in the industrial action were not entitled to the allowance because they were not carrying “fare paying passengers”.

Key takeaways

• This case shows us the importance of drafting Enterprise Bargaining Agreements with clear and certain terms to protect employees.
• Most times the Courts will look at Enterprise Bargaining Agreements literally and not stray from the ordinary meaning of the words in them. 
• It is important to ensure the terms are clear and consistent to minimise the risk of any ambiguities which may give rise to legal challenges.