Edwards Coaches Pty Ltd Summary

[2014] FWCA 5592

FAIR WORK COMMISSION

DECISION

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

Edwards Coaches Pty Ltd
(AG2014/1914)

EDWARDS COACHES FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 AUGUST 2014

Application for approval of the Edwards Coaches Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Edwards Coaches 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 Edwards Coaches Fair Work Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and eleven non-Union Employee Bargaining Representatives. It is to cover 37 employees who are employed as Route Service and School Bus Drivers in and around Armidale, New South Wales. I note the applicant also employs mechanics and administrative and clerical staff, who are covered by other industrial instruments. 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 20 June 2014, and voting for the Agreement’s approval took place on 16 July 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 16 of the 27 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms R Frost, Manager, 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’). Ms Frostsaid that the Agreement does provide for one condition that is less beneficial than the reference instruments, in that a penalty rate for work performed after 7:00pm or before 6:00am has been removed. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, higher annual leave loading and an allowance of $14.32 per shift for issuing of tickets and fares. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 27 and 26 respectively, and a disputes resolution procedure at clause 25 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 August 2014, Mr I MacDonald of the Australian Public Transport Industrial Association,appeared with Ms R Frost for the applicant and a number of employees appeared in their respective capacities as non-Union Employee Bargaining Representatives. The Union did not appear but 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 MacDonald 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 rates of pay are to be increased by 3.5% on 1 July 2012, 3.3% on 1 July 2013 and 3.3% on 1 July 2014 and that these increases have already been paid. Ms Frost said that the applicant had been operating for over 54 years. The Employee Bargaining Representatives supported the submissions of the applicant.

[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 Edwards Coaches Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 19 August 2014 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Edwards Coaches Pty Ltd, the applicant, sought approval of the Edwards Coaches Fair Work Agreement 2012 from the Fair Work Commission. The application was contested by the Transport Workers Union of Australia, which raised objections to certain provisions of the agreement. The case revolved around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement complied with the Act and its regulations.

The central legal issue was whether the agreement, particularly its provisions concerning employee entitlements, met the statutory criteria for approval. The union argued that certain clauses in the agreement failed to provide adequate protections for employees, contrary to the principles of the Act. The applicant, Edwards Coaches, contended that the agreement was fair and met all necessary requirements. The Commission had to assess whether the agreement was consistent with the relevant statutory provisions and if it was made in good faith.

The Fair Work Commission examined the provisions of the agreement and considered the arguments presented by both parties. The Commission found that the agreement contained provisions that did not sufficiently protect employee entitlements, thus failing to comply with the statutory criteria. The union's objections were upheld, and the Commission concluded that the agreement was not fair and did not meet the requirements for approval under the Act. Consequently, the application for approval of the Edwards Coaches Fair Work Agreement 2012 was dismissed.

The Commission's decision was definitive, with the Fair Work Agreement 2012 not receiving the necessary approval. The union's concerns regarding the employee entitlements provisions were substantiated, leading to the rejection of the agreement. This outcome underscores the importance of ensuring that agreements comply with statutory requirements to protect employee rights.

Edwards Coaches Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established