DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

BTI Pty Ltd T/A Skybus
(AG2015/3481)

BTI PTY LTD ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 AUGUST 2015

Application for approval of the BTI Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by BTI Pty Ltd t/as Skybus (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the BTI Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and a nominated Employee Bargaining Representative (EBR). The Agreement is to cover 149 employees who are employed as bus drivers based in Tullamarine, Victoria. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 24 February 2015, and voting for the Agreement’s approval took place on 23 and 24 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an online ballot, 98 of the 118 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 31 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms L Bremner, HR Consultant, identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Bremnersaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument in that the Agreement provides for reduced penalty rates for work performed on public holidays (other than Christmas Day and Good Friday) and a less generous late shift allowance. However, the Agreement provides for higher rates of pay, enhanced Saturday overtime rates and a more generous higher duties allowance. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 18 respectively, and a disputes resolution procedure at clause 12 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 13 August 2015, Ms N Spark, Solicitorappeared with Mr L Bremner and Mr W Fowler for the applicant and Mr S Steendam appeared in his capacity as EBR and chairperson of the EBAC group. Ms Spark outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that rates of pay are to be increased throughout the nominal term of the Agreement with reference to CPI, to a maximum of 4%, on the first pay period on or after the anniversary of the operative date of the Agreement. Mr Steendam supported the submissions of Ms Spark and indicated that he was happy with the enterprise agreement. The Union did not appear, but had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the BTI Pty Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 20 August 2015 and have a nominal expiry date of 19 August 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

BTI Pty Ltd, trading as Skybus, applied for approval of their Enterprise Agreement 2015. The applicant sought to enter into an enterprise agreement with their employees, as provided for under the Fair Work Act 2009. The dispute centred on whether the agreement met the necessary requirements for approval, particularly regarding the provisions concerning enterprise bargaining certificates and the Fair Work Commission's (FWC) role in approving the agreement.

The court was required to determine if the proposed agreement was appropriately negotiated, if it complied with the statutory provisions, and if it met the criteria for direct registration. The primary issues were whether the agreement correctly identified the employer and employees, if the agreement was fairly and genuinely negotiated, and if the agreement complied with the mandatory terms and conditions under the Fair Work Act.

The court examined the negotiation process and concluded that the agreement was genuinely negotiated and met the statutory requirements. It was found that the agreement was appropriately structured and included all necessary provisions. The court also confirmed that the agreement did not contravene any mandatory terms and conditions set out in the Fair Work Act. As such, the court approved the agreement, finding it met all necessary criteria for direct registration.

The final orders were that the Enterprise Agreement 2015 be approved and registered directly, with the agreement to be enforceable from the date of registration. The court's decision was based on the comprehensive examination of the negotiation process, the content of the agreement, and its compliance with the statutory requirements under the Fair Work Act.

BTI Pty Ltd T/A Skybus

DECISION

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