C and J Robertson Pty Ltd

[2014] FWCA 390

[2014] FWCA 390

FAIR WORK COMMISSION

DECISION

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

C and J Robertson Pty Ltd
(AG2013/11991)

C AND J ROBERTSON PTY LTD FAIR WORK AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 JANUARY 2014

Application for approval of the C and J Robertson Pty Ltd Fair Work Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by C and J Robertson 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 C and J Robertson Pty Ltd Fair Work Agreement 2014 (the ‘Agreement’). The Agreement is to cover 12 employees who are engaged as bus drivers performing route and school bus work in Warburn, New South Wales. I note that the applicant also employs other employees, including mechanics and administrative staff, who are covered under other awards. 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 21 October 2013, and voting for the Agreement’s approval took place on 30 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Robertson 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 Robertsonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a one hour minimum engagement for casual employees from Monday to Fridays, a restriction of accumulation of Time Off to five days over six months and the removal of a 15% penalty for work performed between 7pm and 6am. However, the Agreement also provides for a number of terms and conditions which are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, more generous overtime entitlements, annual leave loading of 25% and longer minimum engagements for casual employees on Saturdays, Sundays and Public Holidays. Rates of Pay are to be increased by 3.5% on 1 July 2013 and 1 July 2014. 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 15 January 2014, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales,appeared for the applicant. 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 explained that the Agreement was similar in terms to an enterprise agreement approved by Harrison SDP in April 2013; See: TA & RJ Robertson Bus Proprietors Fair Work Agreement 2012[2013] FWCA 2021. The applicant had recently purchased part of that employer’s business and some of the employees were now employed by the applicant. As a result, the applicant wished to have its own enterprise agreement in place for its employees .

[5] Having heard the applicant’s 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 C and J Robertson Pty Ltd Fair Work Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 22 January 2014 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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