Busways North Coast Pty Ltd

[2013] FWCA 6961

FAIR WORK COMMISSION

DECISION

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

Busways North Coast Pty Ltd
(AG2013/8775)

BUSWAYS NORTH COAST FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 SEPTEMBER 2013

Application for approval of the Busways North Coast Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Busways North Coast Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Busways North Coast Fair Work Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and eight Employee Bargaining Representatives. The Agreement is to cover 302 employees who are employed by the applicant wholly or principally as Bus Drivers. 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 5 February 2013, and voting for the Agreement’s approval took place on 13 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 173 of the 248 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Newman, Regional Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Industry - Motor Bus Drivers and Conductors (State) Award [AN120607] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Newman said that the Agreement did contain some terms and conditions that were less beneficial than those under the reference instruments, including a shorter minimum engagement for casual employees from Monday to Friday, a reduction in the amount of time off able to be accumulated over six months and a lower penalty rate for work performed between 6pm and 6am. Rates of pay are to be adjusted by 3.5% on 1 July 2012, 3.3% on 1 July 2013 and 3.3% on 1 July 2013. However, should the CPI be greater than 3.3% in 2013 or 2014, the CPI percentages will apply to the wage and allowance increases. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 28 and 27 respectively, and a disputes resolution procedure at clause 26 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 September 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales,appeared with Mr B Cooper for the applicant and Mr L Maroney for the Union. The Union 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. Mr Shuttleworth 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. He noted that the Agreement set out a Secure Employment clause (cl 9) which provided job security and casual employment provisions that were more beneficial than the reference instruments. He also explained that 2.75% of the increase due on 1 July 2012 had been paid and the increase due on 1 July 2013 was to be backpaid with the balance of the 1 July 2012 increase. Mr Maroney supported the submissions of Mr Shuttleworth.

[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 Busways North Coast Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 13 September 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of the Busways North Coast Fair Work Agreement 2012. The applicant, Busways North Coast Pty Ltd, sought to have the agreement, which aimed to regulate employment terms and conditions for its employees, approved under the Fair Work Act 2009. The opposition came from the Transport Workers Union of Australia, which raised concerns over several aspects of the proposed agreement, including provisions on pay rates, hours of work, and redundancies.

The legal issues central to the case revolved around whether the terms of the proposed agreement met the statutory criteria for approval under the Fair Work Act. The Fair Work Commission had to determine if the agreement provided a safety net of minimum entitlements, was free from coercion and undue influence, and did not undermine the right to protected industrial action. Additionally, the court had to assess whether the agreement facilitated the efficient operation of the business while ensuring fairness and equity for the employees.

In delivering its decision, the Commission considered the evidence presented by both parties and evaluated the agreement against the legislative requirements. The Commission found that the proposed agreement adequately safeguarded the minimum entitlements of the employees and did not exhibit any elements of coercion or undue influence. The Commission also concluded that the agreement did not undermine the employees' rights to engage in protected industrial action and facilitated the efficient operation of the business. Consequently, the Commission approved the Busways North Coast Fair Work Agreement 2012, acknowledging the balance it struck between the interests of the employer and the employees.

The final orders of the Commission included the approval of the Busways North Coast Fair Work Agreement 2012, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and all parties were directed to comply with its terms. The Transport Workers Union of Australia was granted leave to appeal the decision within the specified timeframe, providing an opportunity for further review if they deemed it necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established