Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd (No 2) [2022] FCA 389

Federal Court of Australia

Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd (No 2) [2022] FCA 389 File number(s): NSD 867 of 2021

Judgment of: RARES J

Date of judgment: 4 April 2022

Catchwords: INDUSTRIAL RELATIONS – compensation and pecuniary penalties under ss 545, 546 and 547 of Fair Work Act 2009 (Cth) – where employer contravened copied State award and s 768AG by failing to pay annual wage review increase under s 285 – where Court appointed referee calculated underpayment for each employee but made calculation error requiring supplementary report – where employer offered new enterprise agreement that included increase legally due from annual increase awarded under s 285 instead of immediately paying increase – where employer had no relevant history of contraventions – where employer only cooperated in paying increase after proceeding commenced – whether final orders ought be postponed pending employer's application to Fair Work Commission to review application of past annual wage reviews increases to copied State award

Legislation: Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 9 Fair Work Act 2009 (Cth) ss 545, 547 and 768AG State Transit Authority Bus Operations Enterprise (State) Award 2018 cls 15, 21 and 67 State Transit Authority Senior and Salaried Officers' Enterprise State Award 2018

Cases cited: Apotex Pty Limited v Les Laboratoires Servier (No 6) [2012] FCA 745 Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd [2021] FCA 1436 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Mantarakis v Transit Systems West Services Pty Ltd [2020] FCCA 2014 Warramunda Village Inc v Pryde (2002) 116 FCR 58