Elgan Coachlines Pty Ltd As Trustee For The G A Nagle Family Trust

[2014] FWCA 7757

FAIR WORK COMMISSION

DECISION

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

Elgan Coachlines Pty Ltd As Trustee For The G A Nagle Family Trust
(AG2014/9577)

ELGAN COACHLINES PTY LTD ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 NOVEMBER 2014

Application for approval of the Elgan Coachlines Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Elgan Coaches Pty Ltd As Trustee For the G A Nagle Family Trust (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Elgan Coachlines Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with Ms E Barker, a nominated Employee Bargaining Representative (EBR) and is to cover 2 employees who are employed as school and charter Bus Drivers based in Sebastopol, Victoria. 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 1 August 2014, and voting for the Agreement’s approval took place between 6 and 9 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, both of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 October 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Nagle, Company Director identified the Passenger Vehicle Transportation Award 2010 [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’). Mr Naglesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a lower casual loading for employees performing charter work and less generous allowances. However the Agreement provides for higher rates of pay and a continuous service grant. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 10 and 11 respectively, and a disputes resolution procedure at clause 9 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 27 October 2014, Mr R Lambert of Wintergreen Australia and Mr G Nagle appeared for the applicant and Ms E Barker appeared in her capacity as EBR. 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. Mr Lambert explained that rates or pay are to be increased on 1 January and 1 July during the nominal term of the Agreement by reference to percentage changes between average weekly earnings in the preceding May to November and November to May, respectively. He said the Agreement was based on other similar industry agreements which have recently been approved by the Commission. Ms Barker had filed a declaration (Form F18A) setting out that the employees he represented supported the approval of the Agreement. She supported the submissions of Mr Lambert.

[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 Elgan Coachlines Pty Ltd Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 3 November 2014 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Elgan Coachlines Pty Ltd, as trustee for the G A Nagle Family Trust, sought approval of the Elgan Coachlines Pty Ltd Enterprise Agreement 2014 from the Fair Work Commission. The agreement was intended to regulate the employment conditions of certain employees within the organisation. The primary concern of the applicant was to ensure the agreement complied with the relevant provisions of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the agreement met the necessary standards, particularly focusing on its fairness and compliance with the relevant legislative framework.

The legal issues before the Commission centred on the fairness and compliance of the enterprise agreement with the Fair Work Act 2009. The Commission had to consider whether the agreement provided for minimum terms and conditions, was free from prohibited content, and included mechanisms for resolving disputes. Additionally, the Commission needed to assess whether the agreement was appropriately negotiated and whether it offered a fair and reasonable outcome for all parties involved.

The Fair Work Commission found that the enterprise agreement was compliant with the requirements of the Fair Work Act 2009. The agreement provided for the minimum terms and conditions as stipulated by the Act, and it was free from any prohibited content. The Commission noted that the agreement included adequate provisions for dispute resolution and that it had been appropriately negotiated. The outcome was considered fair and reasonable for both the employer and the employees, taking into account the specific circumstances of the organisation. Consequently, the Commission approved the enterprise agreement, subject to certain conditions and future monitoring to ensure ongoing compliance.

The Fair Work Commission approved the Elgan Coachlines Pty Ltd Enterprise Agreement 2014, subject to specific conditions aimed at ensuring compliance with the Fair Work Act 2009. The approval was contingent upon the continued adherence to the terms of the agreement and its application to the specified employees. The Commission also mandated regular reviews to assess the ongoing fairness and effectiveness of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established