Greyhound Australia Pty Ltd

[2013] FWCA 9298

[2013] FWCA 9298

FAIR WORK COMMISSION

DECISION

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

Greyhound Australia Pty Ltd
(AG2013/10090)

GREYHOUND AUSTRALIA OLYMPIC DAM ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 DECEMBER 2013

Application for approval of the Greyhound Australia Olympic Dam Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Greyhound Australia 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 Greyhound Australia Olympic Dam Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with two Employee Bargaining Representatives. The Agreement is to cover 12 employees of the applicant who are covered by the Passenger Transport Vehicles Award 2010 [MA000063] and who are rostered to work more than four consecutive shifts/days at Olympic Dam near Roxby Downs in South Australia. 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 26 September 2013, and voting for the Agreement’s approval took place between 28 October and 1 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 8 of the 9 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Henningsen, HR Operations Manager identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Workers (South Australian Passenger Vehicles) Award [AN150163] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Henningsensaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, in that the Agreement does not provide for penalty rates for work performed on weekends, overtime, public holidays and between 6am and 7pm. However, these penalty rates have been factored into significantly higher loaded rates of pay. Drivers are also entitled to meals and accommodation during the period they are located onsite. Rates of pay are to be adjusted with reference to the National CPI. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 19 respectively, and a disputes resolution procedure at clause 20 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 22 November 2013, Ms K Henningsen,appeared for the applicant and Mr P Willson and Mr R Beinke appeared in their respective capacities as Employee Bargaining Representatives. Ms Henningsen 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. She explained that a previous application for approval of an enterprise agreement had been rejected by the Commission; See: Greyhound Australia Olympic Dam Enterprise Agreement 2013 [2013] FWC 4140. However, the applicant had now addressed the concerns of Bartel DP as to how the loaded rates of pay are comprised and how they were explained to the employees. She also said that the rates of pay due to be increased from 21 March 2013 will be backpaid to the employees. Mr Willson and Mr Beinke supported the submissions of Ms Henningsen and indicated that they supported the approval of the Agreement.

[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 Greyhound Australia Olympic Dam Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 29 November 2013 and have a nominal expiry date of 31 October 2017.

DEPUTY PRESIDENT

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