Edmond Charles and Faye Ogden t/as Ogden's Coaches

[2013] FWCA 5066

[2013] FWCA 5066

FAIR WORK COMMISSION

DECISION

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

Edmond Charles and Faye Ogden t/as Ogden's Coaches
(AG2013/7286)

EDMOND CHARLES & FAYE OGDEN TRADING AS OGDEN'S COACHES FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 JULY 2013

Edmond Charles and Faye Ogden trading as Ogden's Coaches Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Edmond Charles & Faye Ogden t/as Ogden’s Coaches (the ‘applicants’) who seek the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Edmond Charles & Faye Ogden trading as Ogden’s Coaches Fair Work Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (New South Wales Branch) and four Employee Bargaining Representatives. The Agreement is to cover 82 employees who are engaged as Bus Drivers performing route and school bus work. The applicants also employ a number of other employees, such as administrative staff and mechanics, who are covered by separate 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 March 2013, and voting for the Agreement’s approval took place 12 - 14 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot held at a number of the applicants’ depots, 61 of the 70 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Toynton, Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Toyntonsaid that the Agreement does contain some terms and conditions that are less beneficial than those provided for by the Modern Award, including a minimum engagement of one hour for casuals on weekdays, reduced penalty rates between 6pm and 6am and a limit to the accumulation of rostered days off to five days over six months. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of, those under the Modern Award, including higher rates of pay, longer minimum engagements for casuals on Saturdays, Sundays and Public Holidays, slightly more generous overtime rates and higher annual leave loading. 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 2014. I understand that the increases of 1 July 2012 and 1 July 2013 are already being paid. 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 clause 26 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 July 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales, and Ms A Toynton, Manager, appeared for the applicants. Mr L Maroney appeared for the Union and two of the Employee Bargaining Representatives, Mr M Blackett and Mr A Graham also appeared. 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 submitted that the negotiations for the Agreement had been lengthy, but that the comparatively high voting participation by the employees and the support of the Union and the Employee Bargaining Representatives for the Agreement presented a strong prima facie case for the Agreement’s approval. He also said that the reference to the nominal expiry date of the Agreement under cl 3(b) should be to 30 June 2015, rather than 30 June.

[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 Edmond Charles & Faye Ogden trading as Ogden’s Coaches Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 19 July 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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