City Sightseeing Pty Limited Summary

[2014] FWCA 350

FAIR WORK COMMISSION

DECISION

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

City Sightseeing Pty Limited
(AG2013/11538)

CITY SIGHTSEEING PTY LTD ENTERPRISE MADE UNDER THE FAIR WORK ACT (CTH.) 2009

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 FEBRUARY 2014

Application for approval of the City Sightseeing Pty Ltd Enterprise Agreement made under the Fair Work Act (Cth.) 2009.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by City Sightseeing 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 City Sightseeing Pty Ltd Enterprise Agreement made under the Fair Work Act (Cth.) 2009 (the ‘Agreement’). The Agreement is to cover 29 employees who are engaged in providing sightseeing bus tours across Sydney, commonly known as ‘Sydney Explorer’.

[2] The employees were last notified of their representational rights on 11 October 2013, and voting for the Agreement’s approval took place between 5 and 11 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 27 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms N Watson identified the Passenger Vehicle Transportation Award [MA000063] and the Transport Workers (Passenger Vehicles) Award 2002 [AP818060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Watsonsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. However, this is not strictly true as the Agreement provides rates of pay and flat bonuses for work performed on Saturdays and public holidays and removes a number of penalty rates, overtime entitlements and allowances. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions, but the Agreement also provides for additional performance-based increases based on customer patronage at the discretion of the employer. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 25 and 25 respectively, and a disputes resolution procedure at clause 27 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 3 December 2013, Mr C Lambert of Counselappeared for the applicant. Mr Lambert 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 there were four categories of employees: drivers, street staff (ticket sellers and collectors), mechanics and cleaners. He also said that the applicant had paid the new rates by administrative action. In response to some of my concerns, he offered to provide undertakings that annual leave loading would be paid at 17.5% and that clause 10(i) of the Agreement, dealing with the taking of personal leave within a probationary period, is of no effect. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the City Sightseeing Pty Ltd Enterprise Agreement made under the Fair Work Act (Cth.) 2009.Pursuant to s 54 of the Act, the Agreement shall operate from 10 December 2013 and have a nominal expiry date of 9 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

City Sightseeing Pty Limited was the subject of an application before the Fair Work Commission, brought under the Fair Work Act 2009. The company sought approval for a new Enterprise Agreement, which had been negotiated between the employer and employee representatives. The dispute arose from the terms of the proposed agreement, which the employees argued did not adequately reflect the needs and rights of the workforce.

The primary legal issues before the Commission were whether the proposed Enterprise Agreement met the statutory requirements under the Fair Work Act, including whether it was made in good faith and whether it provided for the minimum terms and conditions of employment as prescribed by the Act. Furthermore, the Commission needed to determine if the agreement was in the best interests of the employees and whether it complied with the process requirements for the negotiation and approval of such agreements.

The Commission found that the agreement was negotiated in good faith and that it provided for the minimum terms and conditions as required by the Act. The Commission also concluded that the agreement was in the best interests of the employees, considering the evidence provided and the context of the negotiations. The process for approving the agreement was found to be compliant with the statutory requirements, and thus the Commission approved the proposed Enterprise Agreement. The approval was subject to specific conditions, which included the requirement for ongoing monitoring and reporting to ensure compliance with the terms of the agreement.

City Sightseeing Pty Limited

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established