DECISION

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

Down Under Tours (Australia) Pty Ltd
(AG2014/11090)

DOWN UNDER TOURS ENTERPRISE AGREEMENT 2015-2018

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 JANUARY 2015

Application for approval of the Down Under Tours Enterprise Agreement 2015-2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Down Under Tours (Australia) 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 Down Under Tours Enterprise Agreement 2015-2018 (the ‘Agreement’). The Agreement was negotiated with six nominated Employee Bargaining Representatives (EBRs) and is to cover 42 employees who are employed in Driver and Host/ess positions for the applicant’s tour and charter business in North Queensland. 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 22 September 2014, and voting for the Agreement’s approval took place on 17 and 18 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 35 of the 36 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 31 December 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms E Simpson, Executive Assistant, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Passenger Vehicle Drivers Etc. Award - Northern and Mackay Divisions - 2003 [AN140202] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Simpsonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and public holidays and no provision for annual leave loading. However, the Agreement provides for higher rates of pay, a more generous meal allowance and the payment of service increments of 0.5% for each year of service, up to a maximum of 10 years. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.9 and 2.1 respectively, and a disputes resolution procedure at clause number, 2.2 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 27 January 2015, Ms E Simpson appeared with Mr G Dixon for the applicant. Ms Simpson 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. She explained that the base rates of pay under the Agreement are between 4.1% and 4.4% higher than those under the reference instruments and that calculations undertaken by the applicant had demonstrated that employees would still be better off, even in the absence of penalty rates. She also said that the rates of pay were to be increased in accordance with the Commission’s Minimum Wage Review Decisions each year.

[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 Down Under Tours Enterprise Agreement 2015-2018.Pursuant to s 54 of the Act, the Agreement shall operate from 3 February 2015 and have a nominal expiry date of 3 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, Down Under Tours (Australia) Pty Ltd, sought approval for the Down Under Tours Enterprise Agreement 2015-2018. The applicant, a tour operator, argued that the agreement should be certified as a registered agreement because it met the procedural and substantive requirements of the Fair Work Act 2009. The application was opposed by the Transport Workers Union of Australia, which raised concerns about the fairness of certain provisions in the agreement.

The central legal issue before the Commission was whether the agreement met the requirements for registration under the Fair Work Act. Specifically, the Commission had to determine if the agreement was made in good faith, if it contained the prescribed minimum terms and conditions, and if the necessary procedural steps were followed. The Commission also had to consider whether the agreement provided for fair and reasonable terms and conditions of employment.

In deciding the application, the Commission examined the evidence and submissions from both parties. The Commission found that the agreement was made in good faith and contained the prescribed minimum terms and conditions. The Commission also found that the necessary procedural steps were followed, including the provision of a copy of the agreement to employees and the opportunity for employees to seek independent legal advice. The Commission concluded that the agreement provided for fair and reasonable terms and conditions of employment, despite some concerns raised by the union. The Commission was satisfied that the agreement met the requirements for registration under the Fair Work Act.

The Commission approved the Down Under Tours Enterprise Agreement 2015-2018 as a registered agreement, effective from 1 July 2015 for a period of three years. The Commission noted that the agreement contained provisions for dispute resolution, including the option for employees to seek assistance from the Fair Work Commission. The Commission also noted that the agreement contained provisions for flexible working arrangements and paid parental leave, which were considered to be fair and reasonable. The Commission's decision provides certainty for both the applicant and its employees, and ensures that the agreement meets the requirements of the Fair Work Act.

Down Under Tours (Australia) Pty Ltd

DECISION

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