Forest Coach Lines Pty Ltd

[2016] FWCA 8255

[2016] FWCA 8255

FAIR WORK COMMISSION

DECISION

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

Forest Coach Lines Pty Ltd
(AG2016/5620)

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 NOVEMBER 2016

Application for approval of the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2016

[1] An application has been made by Forest Coach Lines Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers employees of the applicant who are employed wholly or principally as passenger vehicle drivers at the Terry Hills Depot. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The Transport Workers Union (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

Clause detrimental when compared with the National Employment Standards (NES)

[4] Clause 26(i) of the Agreement provides that when an employee is absent for work on the working day immediately before or immediately after a public holiday without reasonable excuse or consent of the employer, the employee will not be entitled for payment for the unworked public holiday.

[5] The Commission wrote to the applicant noting that this clause appears to be detrimental when compared with s.116 of the Act, which states that if an employee is absent on a public holiday, the employee must be paid at the base rate of pay for the ordinary hours of pay on that day. Pursuant to s.55(4) of the Act, an agreement may not include a term which is detrimental when compared with the NES.

[6] The applicant has undertaken that it will not apply clause 26(i) of the Agreement.

Better off overall test (BOOT)

[7] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are overall more beneficial than under the Passenger Vehicle Transportation Award 2010, which is the relevant instrument for the purposes of the BOOT. Under the Agreement some Award entitlements have been reduced, including the penalty rate for time worked after 7.00pm or before 6.00am, however the Agreement provides base rates of pay that are significantly higher for all classifications than the Award, higher weekend and overtime rates and a more generous annual leave loading.

Grade 6 Passenger Vehicle Driver rates of pay

[8] The Commission analysed the pay rates for each grade classification in respect of the BOOT, and noted that base rates of pay are higher under the Agreement for all classifications; however, the base rate of pay for the Grade 6 classification may not be high enough to compensate casual employees who regularly or exclusively work on Saturdays.

[9] The applicant informed the Commission that the applicant’s business does not employ casual passenger vehicle drivers at the Grade 6 Award level, and has provided an undertaking that it will not do so during the lifespan of the Agreement.

Conclusion

[10] Taking into account the higher rates of pay and other more beneficial entitlements under the Agreement, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[11] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[12] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[13] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[14] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

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Annexure A