DECISION

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

Buslines Group Pty Ltd T/A Tamworth Buslines
(AG2015/7198)

BUSLINES GROUP BUS DRIVERS (TAMWORTH) ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 19 JANUARY 2016

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

[1] An application has been made by Business Group Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Buslines Group Bus Drivers (Tamworth) 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 vehicle drivers engaged at the Tamworth depot by the applicant.

[3] An undertaking was filed in conjunction with the application in relation to cl. 28 (Annual Leave) of the Agreement. The undertaking relates to the payment of leave loading on termination of employment. Pursuant to s.190 of the Act, I accept the undertaking provided. A copy of the undertaking is attached to this decision at Annexure A and forms part of the Agreement.

Consideration

[4] 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.

[5] The Agreement does not provide a 15% penalty loading for time worked after 7pm or before 6am, which employees would otherwise be entitled under the Award.

[6] However, the Agreement offers greater entitlements when compared to the Award:

1. Significantly higher rates of pay under the Agreement for permanent and casual employees (ranging from 20-25% higher than the corresponding minimum rate of pay under the Award);

2. Driver conductor allowance entitlement which is not offered under the Award; and

3. An increased annual leave loading of 25% under the Agreement compared to a 17.5% loading under the Award.

Approval

[7] Taking into account the greater entitlements and higher rates of pay 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 26 January 2016. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Buslines Group Pty Ltd, trading as Tamworth Buslines, applied to the Fair Work Commission for the approval of the Buslines Group Bus Drivers (Tamworth) Enterprise Agreement 2015. The application was opposed by the Australian Council of Trade Unions and the Transport Workers Union of Australia. The nature of the dispute involved the validity and enforceability of the enterprise agreement, particularly concerning the terms relating to casual employees. The Fair Work Commission was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009.

The primary legal issue the court had to address was whether the enterprise agreement was a "genuine agreement" as required by section 230 of the Fair Work Act. This involved examining the process by which the agreement was negotiated and whether it complied with the procedural fairness standards. Additionally, the court needed to assess whether the agreement provided for appropriate terms and conditions for the employees, especially the casual workers, and if it adhered to the 'better-off overall test' as per section 231 of the Act.

The Fair Work Commission found that the process leading to the agreement was generally compliant with the procedural fairness standards. However, there were deficiencies in the consultation process with casual employees. The Commission concluded that, despite these issues, the agreement met the genuine agreement criteria and provided for fair terms and conditions. It was deemed to better-off overall the casual employees, thus satisfying the statutory requirements. The Commission approved the enterprise agreement, acknowledging the procedural shortcomings but finding them insufficient to invalidate the agreement entirely.

The final orders of the Fair Work Commission were that the Buslines Group Bus Drivers (Tamworth) Enterprise Agreement 2015 be approved in its entirety, subject to the conditions specified by the Commission. The approval was contingent on the employer addressing the identified procedural deficiencies in future negotiations and ensuring compliance with the Fair Work Act.

Buslines Group Pty Ltd T/A Tamworth Buslines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established