Bundinglea Pty Ltd as Trustee for P & J Mahony Family Trust Summary

[2014] FWCA 7714

FAIR WORK COMMISSION

DECISION

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

Bundinglea Pty Ltd as Trustee for P & J Mahony Family Trust
(AG2014/9580)

BUNDINGLEA PTY LTD ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 NOVEMBER 2014

Application for approval of the Bundinglea Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bundinglea Pty Ltd as Trustee for P & J Mahony Family Trust (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bundinglea Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with Mr M Dittloff, a nominated Employee Bargaining Representative (EBR) and is to cover 2 employees who employed as are school and charter Bus Drivers based in Ross Creek, 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 1 October 2014, and voting for the Agreement’s approval took place between 6 and 9 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, both of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 October 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms J Mahony, General Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Workers (Passenger Vehicles) Award 2002 [AP818060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Mahony said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a lower casual loading for employees performing charter work and less generous allowances. However the Agreement provides for higher rates of pay and a continuous service grant. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 10 and 11 respectively, and a disputes resolution procedure at clause 9 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on Mr R Lambert of Wintergreen Australia and Ms J Mahony appeared for the applicant and Mr M Dittloff appeared in his capacity as EBR. Mr Lambert 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. Mr Lambert explained that rates or pay are to be increased on 1 January and 1 July during the nominal term of the Agreement by reference to percentage changes between average weekly earnings in the preceding May to November and November to May, respectively. He said the Agreement was based on other similar industry agreements which have recently been approved by the Commission. Mr Dittloff had filed a declaration (Form F18A) setting out that the employees he represented supported the approval of the Agreement. He supported the submissions of Mr Lambert.

[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 Bundinglea Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 3 November 2014 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Bundinglea Pty Ltd as Trustee for P & J Mahony Family Trust was the subject of an application for the approval of an enterprise agreement. The matter was heard in the Fair Work Commission (FWC). The applicant, Bundinglea Pty Ltd, sought the approval of the Bundinglea Pty Ltd Enterprise Agreement 2014 under section 231 of the Fair Work Act 2009. The agreement in question covered employees who were part of the workforce of Bundinglea Pty Ltd.

The primary legal issue before the Commission was whether the agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the FWC had to determine if the agreement was a genuine bargain between the employer and the employees, if it contained the minimum terms and conditions of employment as required by law, and if it complied with the provisions of the Act. The Commission also needed to ensure that the agreement did not unfairly disadvantage any of the parties involved.

The FWC examined the submissions and evidence provided by both the employer and the employees' representatives. The Commission found that the agreement was a genuine attempt to regulate the terms and conditions of employment and that it did not unfairly disadvantage any party. The agreement contained all the required minimum terms and conditions and complied with the provisions of the Fair Work Act. The FWC was satisfied that the agreement was fair and reasonable, and thus approved the Bundinglea Pty Ltd Enterprise Agreement 2014.

The FWC ordered that the Bundinglea Pty Ltd Enterprise Agreement 2014 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the approval. The agreement would now govern the employment conditions for the employees covered by it until it was terminated or replaced by a new agreement.

Bundinglea Pty Ltd as Trustee for P & J Mahony Family Trust

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