Alura Coaches Pty Ltd

[2024] FWCA 1469

[2024] FWCA 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Alura Coaches Pty Ltd

(AG2024/896)

ALURA COACHES COACH DRIVERS ENTERPRISE AGREEMENT 2023

Passenger transport industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 22 APRIL 2024

Application for approval of the Alura Coaches Coach Drivers Enterprise Agreement 2023

Introduction

1. Alura Coaches Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Alura Coaches Coach Drivers Enterprise Agreement 2023 (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

1. 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.

1. 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 notification time for the Agreement was 15 January 2024.

1. 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 Agreement was made on 13 March 2024.

Notice of Employee Representational Rights (NERR)

1. The NERR appears to include a date at the bottom of the page. As such, the NERR does not appear to be in the prescribed form. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matters constituted a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model flexibility term is attached in Annexure B.

National Employment Standards (NES) precedence term in Clause 4(f) of the Agreement

1. Clause 23(d) provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 23(d) does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). This raises the issue that Clause 23(d) may be inconsistent with Chapter 2, Part 2.2 of the Act. I note that in accordance with the NES precedence term in Clause 4(f) of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. 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.

Reconciliation clause

1. The Agreement provides loaded rates of pay inclusive of shift and weekend penalty rates that would otherwise be available under the Award. The Employer advised in the Form F17B filed with the application that some of the rates of pay for permanent and casual employees provided in clauses 8.1 and 8.2 of the Agreement are slightly lower than the Award however most of the operations of the business are carried during the week when shift and weekend penalty rates do not apply.

1. Clause 8.6 provides that a reconciliation will take place each week prior to the payment of wages to ensure that employees will receive an aggregate payment of at least $5.00 more than they would be entitled to under the Award.  I am satisfied that clause 8.6 creates an enforceable right to a payment which would result in each employee being better off overall under the Agreement than under the Award,[2] together with the undertakings referred to above.

Section 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 April 2024. The nominal expiry date of the Agreement is 1 March 2028.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

[2] Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664, [42]-[44].

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