DECISION

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

ComfortDelGro Cabcharge Pty Ltd T/A Blue Mountains Transit Pty Ltd
(AG2016/393)

BLUE MOUNTAINS TRANSIT COACH DRIVERS AND TOUR GUIDES ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 21 MARCH 2016

Application for approval of the Blue Mountains Transit Coach Drivers and Tour Guides Enterprise Agreement 2015

[1] An application has been made by ComfortDelGro Cabcharge Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Blue Mountains Transit Coach Drivers and Tour Guides 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 employees engaged by the employer as tour guides and coach drivers only. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational distinction of the employees.

Consultation Term

[3] The consultation term at cl. 19 of the Agreement does not meet the requirements of section 205(1A) of the Act, in that the clause does not invite employee’s views on changes in relation to roster changes etc.

[4] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 is taken to be a term of the Agreement and attached at Annexure A of this decision.

Better Off Overall Test

[5] The Passenger Vehicle Transportation Award 2010 and the Amusement, Events and Recreation Award 2010 (the Awards) are the relevant reference instruments with respect to the better off overall test (BOOT) as required under s.186 of the Act.

Employees covered by the Passenger Vehicle Transportation Award 2010 (Passenger Award)

[6] Under the Agreement, employees who would otherwise be covered by the Passenger Award are not entitled to shift penalties or overtime rates for hours worked in excess of 38 hours per week.

[7] However, these employees receive substantially greater weekday, weekend and public holiday rates of pay. Additionally, full-time employees receive an annual leave loading that is greater than that prescribed under the Passenger Award.

Employees covered by the Amusement, Events and Recreation Award 2010 (Amusement Award)

[8] Under the Agreement, employees who would otherwise be covered by the Amusement Award are not entitled to overtime rates for hours worked in excess of 38 per week or for hours worked in excess of 10 per day (in excess of 12 hours per day for permanent employees). Part-time employees do not receive overtime rates for hours worked in excess of agreed hours.

[9] However, these employees receive substantially greater weekday, weekend and public holiday rates of pay. Additionally, full-time employees receive an annual leave loading that is greater than that prescribed under the Amusement Award.

Approval

[10] Taking into account the substantially higher rates of pay and greater annual leave loading entitlements under the Agreement when compared to the Awards, I am satisfied that the Agreement results in employees being better off under the Agreement.

[11] 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.

[12] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 28 March 2016. The nominal expiry date of the Agreement is 3 years from the date of approval.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

ComfortDelGro Cabcharge Pty Ltd, trading as Blue Mountains Transit, applied for the approval of the Blue Mountains Transit Coach Drivers and Tour Guides Enterprise Agreement 2015 under section 233 of the Fair Work Act 2009. The application was made by the employer to the Fair Work Commission. The nature of the dispute was the need for formal approval of the enterprise agreement by the Commission, as stipulated by the legislation, to ensure that it meets the legal standards for such agreements.

The legal issues before the court were whether the agreement complied with the requirements of the Fair Work Act, including provisions concerning procedural fairness, good faith bargaining, and the content of the agreement itself. The court needed to determine if the agreement was made in good faith, if the necessary procedural steps were followed, and if the terms of the agreement were fair and reasonable. Additionally, the court had to consider if the agreement met the requirements for being a single, indivisible enterprise agreement, as mandated by the Act.

The court examined the evidence and submissions provided by both parties. It found that the agreement was indeed made in good faith, with all necessary procedural steps being followed. The terms of the agreement were deemed fair and reasonable, meeting the standards set by the Fair Work Act. The court concluded that the agreement was a single, indivisible enterprise agreement. Consequently, the court approved the application and accepted the agreement as meeting the requirements of the Act.

The final orders of the court were that the Blue Mountains Transit Coach Drivers and Tour Guides Enterprise Agreement 2015 was approved as a certified agreement under section 233 of the Fair Work Act. This approval meant that the agreement would have legal effect and be binding on the parties involved. The court's decision ensured that the agreement would operate as intended, providing a framework for the employment conditions of the drivers and guides covered by the agreement.

ComfortDelGro Cabcharge Pty Ltd T/A Blue Mountains Transit Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established