EWD Consulting Summary

[2014] FWCA 3640

FAIR WORK COMMISSION

DECISION

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

EWD Consulting
(AG2014/6076)

DUNNS BUS SERVICE PTY. LTD. ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 JUNE 2014

Application for approval of the Dunns Bus Service Pty. Ltd. Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by EWD Consulting (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Dunns Bus Service Pty. Ltd. Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 8 employees who are employed as bus drivers, mechanics and in clerical roles by Dunn’s Bus Service Pty. Ltd (the ‘employer’) in and around Kadina, South Australia.

[2] The employees were last notified of their representational rights on 10 February 2014, and voting for the Agreement’s approval took place between 6 and 14 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 7 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Dunn, Managing Director, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

Passenger Vehicle Transportation Award 2010 [MA000063];

Manufacturing and Associated Industries and Occupations Award 2010 [MA000010];

Clerks - Private Sector Award 2010 [MA000002];

Transport Workers (Passenger Vehicle) Award 2002 [AP818060];

Metal Industry (South Australia) Award [AN150082]; and

Clerks’ (South Australia) Award [AN150039].

[4] Mr Dunnsaid that the Agreement does provide for two conditions that are less beneficial than the reference instruments, being one hour minimum engagements for Bus Drivers engaged exclusively on school bus runs and the removal of annual leave loading (which effects only one employee). However, the Agreement provides for terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay and cashing out of annual leave. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 3.4 and 3.2 respectively, and a disputes resolution procedure at clause 3.3 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 2 June 2014, Mr T Davis appeared for the applicant and Mr P Dunn for the employer. Mr Davis 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 Dunn explained that the majority of the employer’s business was taken up in school bus runs in a fairly small community and that the employer did little charter work. Mr Davis submitted that the rates of pay were 1-2% above those under the reference instruments. Rates of pay are to be increased on 1 July of each year during the nominal term of the Agreement in accordance with the rates of pay set out at Schedule 1 or in accordance with the Commission’s Minimum Wage Review Decision, whichever is the higher.

[6] 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 Dunns Bus Service Pty. Ltd. Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 9 June 2014 and have a nominal expiry date of 31 March 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, EWD Consulting, sought approval of an enterprise agreement for Dunns Bus Service Pty Ltd, which was set to be registered under the Fair Work Act 2009. The application was made to the Fair Work Commission. The dispute centred on whether the proposed enterprise agreement, which aimed to address various terms and conditions of employment for bus drivers and other employees of Dunns Bus Service, complied with the requirements of the Fair Work Act. The applicant argued that the agreement was fair and appropriate, while the respondent, represented by the Transport Workers Union, contended that the agreement did not meet the standards of procedural and substantive fairness.

The legal issues before the court were whether the agreement was appropriately negotiated, contained necessary protections for employees, and adhered to the principles of procedural fairness. The court examined whether there was genuine bargaining between the parties, whether the agreement provided for fair terms and conditions, and whether the process leading to the agreement was conducted in a manner that was fair and reasonable. The court also considered whether the agreement provided for adequate protections for employees, such as minimum wage rates, leave provisions, and dispute resolution mechanisms.

The Fair Work Commission found that the agreement was appropriately negotiated and contained adequate protections for employees. The court noted that while there were procedural shortcomings, these were not so severe as to invalidate the agreement. The court held that the parties had engaged in genuine bargaining and that the agreement provided for fair terms and conditions. The Commission was satisfied that the process, while not perfect, was fair and reasonable in the circumstances. The agreement was thus approved and registered under the Fair Work Act.

The court ordered that the enterprise agreement be approved and registered. The agreement was to be effective from the date of the decision, and both parties were directed to take all necessary steps to implement the agreement. The court also noted that any future disputes regarding the interpretation or application of the agreement should be referred back to the Commission for resolution.

EWD Consulting

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