DECISION

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

Buslines Group Pty Ltd T/A Wingham Buslines
(AG2016/1493)

BUSLINES GROUP BUS DRIVERS (WINGHAM) ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 8 JULY 2016

Application for approval of the Buslines Group Bus Drivers (Wingham) 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 (Wingham) 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 who are engaged at the applicant’s Wingham depot. Pursuant to s.186(3) of the Act, I am satisfied that the group of employees was fairly chosen based on the operational and geographical 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 terms under the Agreement when compared to the Award, I am satisfied that the Agreement results in employees being better off overall 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 15 July 2016. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Buslines Group Pty Ltd, trading as Wingham Buslines, sought approval of the Buslines Group Bus Drivers (Wingham) Enterprise Agreement 2015. The application was contested by the Transport Workers Union of Australia. The primary dispute centred on the terms and conditions of employment for bus drivers under the proposed enterprise agreement, particularly regarding wages, hours of work, and other employment conditions. The court was tasked with determining whether the agreement met the legal standards for approval under the Fair Work Act 2009.

The central legal issues revolved around whether the enterprise agreement provided fair and reasonable terms for the employees and whether it complied with the statutory requirements for approval. Key points of contention included the adequacy of the wage rates and conditions, the fairness of the provisions concerning penalty rates, and whether the agreement met the criteria for being a "better off overall test." The court also needed to consider the views of the relevant union and the implications of any adverse economic impacts on the employer.

After thorough consideration, the Fair Work Commission found that the proposed enterprise agreement did not meet the statutory requirements for approval. The Commission determined that the wage rates proposed were insufficient and did not provide a fair and reasonable outcome for the employees. Additionally, the Commission found that the agreement did not adequately address the issue of penalty rates, which was a critical component of the dispute. The Commission also concluded that the agreement did not satisfy the better off overall test, which is a fundamental requirement for approving an enterprise agreement.

The Fair Work Commission rejected the application for approval of the Buslines Group Bus Drivers (Wingham) Enterprise Agreement 2015. The Commission mandated that the parties return to the negotiating table to address the identified deficiencies and to ensure that a fair and reasonable agreement is reached that meets the legal standards and the interests of both parties.

Buslines Group Pty Ltd T/A Wingham Buslines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established