Harold Norman Miller and Petra Susann Miller t/as H&P Miller

[2013] FWCA 8635

[2013] FWCA 8635

FAIR WORK COMMISSION

DECISION

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

Harold Norman Miller and Petra Susann Miller t/as H&P Miller
(AG2013/11078)

MILLERS BUSES FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 NOVEMBER 2013

Application for approval of the Millers Buses Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Harold Norman Miller and Petra Susann Miller t/as H&P Miller (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Millers Buses Fair Work Agreement 2012 (the ‘Agreement’). The Agreement is to cover 10 employees who are engaged principally or wholly by the company as bus drivers providing services under a Rural and Regional Bus Industry Contract based at The Rock in New South Wales. I note that the applicant also employs other employees, including mechanics and administrative staff. 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 10 September 2013, and voting for the Agreement’s approval took place on 8 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a show of hands, all 10 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr H Miller, Bus Operator, identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Industry - Motor Bus Drivers and Conductors (State) Award [AN120607] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Hesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a limit to the accumulation of rostered days off to five days over six months and reduced penalty rates for work performed between 6pm and 6am. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, slightly more generous overtime rates and longer minimum engagements for work performed on Saturdays and Sundays. Rates of pay are to be increased by 3.5% on 1 July 2012, 3.3% 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 28 and 27 respectively, and a disputes resolution procedure at clause 26 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 November 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales,appeared with Mr H Miller for the applicant. Mr Shuttleworth 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 Shuttleworth explained that the Agreement was similar to a number of Agreements that had recently been approved by the Commission and was based on a template developed by the Bus & Coach Industrial Association and the Transport Workers’ Union of Australia. He noted that this Agreement did not provide for a dual capacity allowance, but did provide for a minimum two hour engagement for casual employees. He also said that the increases to base rates of pay from 1 July 2012 and 1 July 2013 are already being paid to the employees.

[5] Having heard the applicant’s 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 Millers Buses Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 8 November 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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