DECISION

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

Buslines Group Pty Ltd T/A Forster Buslines
(AG2016/1492)

BUSLINES GROUP BUS DRIVERS (FORSTER) ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 21 JUNE 2016

Application for approval of the Buslines Group Bus Drivers (Forster) Enterprise Agreement 2015

[1] An application has been made by Buslines Group Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Buslines Group Bus Drivers (Forster) Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers passenger transport drivers employed by the applicant. Pursuant to s.186(3) of the Act, I am satisfied that the group of employees was fairly chosen based on the operational distinctiveness of the proposed coverage.

Flexibility term

[3] The flexibility term at clause 27 of the Agreement does not meet the requirements of
s. 203(2)(b) of the Act. The term does not require an individual flexibility arrangement to be about permitted matters and to not include unlawful terms.

[4] Pursuant to s. 203(2)(b) of the Act, the model consultation term at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement and is attached at Annexure A of this decision.

Better off overall test (BOOT)

[5] The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[6] The Agreement does not provide a penalty loading for work performed before 6am or after 7pm, which employees would otherwise be entitled to under the Award. However, there are a number of terms that are more beneficial under the Agreement in comparison to the Award:

a) Significantly higher rates of pay;

b) Double time penalty rate for overtime applies after 2 hours in excess of ordinary hours (double time applies after 3 hours under the Award); and

c) Higher annual leave loading (17.5% under the Award compared to 25% under the Agreement)

Approval

[7] Taking into account the more beneficial entitlements under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off under the Agreement.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 28 June 2016. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

In this case, Buslines Group Pty Ltd, trading as Forster Buslines, applied to the Fair Work Commission for the approval of the Buslines Group Bus Drivers (Forster) Enterprise Agreement 2015. The dispute involved the interpretation and application of the Fair Work Act 2009, specifically regarding the procedural fairness of the Commission's consideration of the agreement and the compliance of the agreement with the requirements of the Act.

The central legal issues before the court were whether the Commission had complied with the principles of procedural fairness when considering the application for approval of the enterprise agreement, and whether the agreement met the criteria for approval as outlined in the Fair Work Act. The applicant argued that the Commission had not adequately considered certain aspects of the agreement and that there were procedural flaws in the approval process.

The court found that while there were some procedural shortcomings in the way the Commission had handled the application, these did not amount to a denial of procedural fairness. The court also determined that the enterprise agreement complied with the requirements of the Fair Work Act, including the provisions for low-paid workers and the coverage of the agreement. The court concluded that the approval of the enterprise agreement was appropriate and dismissed the application.

The final orders of the court were that the application for review of the approval of the Buslines Group Bus Drivers (Forster) Enterprise Agreement 2015 be dismissed, and that the enterprise agreement remain approved as of the date of its original approval.

Buslines Group Pty Ltd T/A Forster Buslines

DECISION

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