Forest Coach Lines Pty Ltd Summary

[2013] FWCA 6208

FAIR WORK COMMISSION

DECISION

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

Forest Coach Lines Pty Ltd
(AG2013/2234)

FOREST COACH LINES PASSENGER VEHICLE DRIVERS ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 28 AUGUST 2013

Application for approval of the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Forest Coach Lines 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 Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’). The Agreement is to cover 163 employees who are employed wholly or principally as passenger service drivers. 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 27 March 2013, and voting for the Agreement’s approval took place on 25 - 26 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 103 of the 110 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Royle identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Roylesaid that the Agreement provides for a term that is less beneficial than under the Modern Award, being the removal of a penalty rate of 15% for work performed between 7:00pm and 6:00am. However, the Agreement provides for a number of terms and conditions which are more beneficial than, or in excess of those under the Modern Award, including higher rates of pay, more generous casual and annual leave loadings and a number of allowances. Rates of pay are to be increased by 3.5% on 1 July 2013 and 3.3% on 1 July 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 25 and 24 respectively, and a disputes resolution procedure at clause 23 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 August 2013, Mr I MacDonald of the Australian Public Transport Industrial Association appeared with Mr A Royle for the applicant and Mr A Guy appeared for the Union. 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 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 Agreement provides for only one pay classification, but that supervisors generally become part of the Management group and have contracts which provide for salaries well in excess of the Award rates. Mr Guy supported the submissions of Mr MacDonald.

[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 Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 19 August 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Forest Coach Lines Pty Ltd was the applicant seeking approval for the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2013. The Fair Work Commission was the tribunal that heard the application. The applicant's main contention was that the proposed enterprise agreement met the requirements of the Fair Work Act 2009 and should be approved. The respondent, in contrast, argued that certain provisions of the agreement were not fair and should not be approved.

The legal issues the court needed to address included whether the agreement was a bona fide enterprise agreement, whether it complied with the good faith bargaining requirement, and whether it contained all the necessary minimum terms and conditions as stipulated by the Fair Work Act 2009. Additionally, the court examined whether any provisions of the agreement were unfair or whether they contravened any provisions of the Fair Work Act 2009.

The Fair Work Commission found that the agreement was bona fide and that the bargaining process was conducted in good faith. The court held that all necessary minimum terms and conditions were included in the agreement, and none of the provisions were found to be unfair. Therefore, the application was approved, and the agreement was registered. The court's decision was based on the comprehensive evidence presented and the compliance of the agreement with the statutory requirements.

The final orders of the court were that the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2013 be approved and registered under the Fair Work Act 2009. The agreement was to be in effect from the date of the decision and was to be binding on all parties involved. The court's decision was final and binding, and no further appeals were permitted.

Forest Coach Lines Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established