Holroyd Bus Lines Pty Ltd T/A Baxter's Bus Lines

[2016] FWCA 6051

[2016] FWCA 6051

FAIR WORK COMMISSION

DECISION

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

Holroyd Bus Lines Pty Ltd T/A Baxter's Bus Lines
(AG2016/4904)

BAXTER'S BUS LINES ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 1 SEPTEMBER 2016

Application for approval of the Baxter's Bus Lines Enterprise Agreement 2016

[1] An application has been made by Holroyd Bus Lines Pty Ltd T/A Baxter’s Bus Lines (the applicant) for the approval of an enterprise agreement known as the Baxter's Bus Lines 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 who are wholly or principally employed as casual bus and coach drivers. 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 employer’s application form F16 indicates that Mr William Paul Ryan, a driver for the applicant, was appointed as an employee bargaining representatives for the negotiation of the Agreement.

Nominal Expiry Date

[4] The Commission wrote to the applicant to clarify the nominal expiry date of the Agreement. The applicant confirmed that the nominal expiry date will be the date falling four years from the Commission’s approval and not 30 July 2020 as stated at clause 3 of the Agreement.

Flexibility Term

[5] The flexibility term at clause 19 of the Agreement does not meet the requirements of
s.203(2)(b) of the Act because it does not require the employer to ensure that an individual flexibility arrangement is about permitted matters and does not include unlawful terms.

[6] Pursuant to s.202(4) of the Act, the model flexibility term at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement and is attached at Annexure A of this decision.

Consultation Term

[7] The consultation term at clause 18 of the Agreement does not meet the requirements of s.205(1) and s.205(1A) of the Act because it does not require the employer to consult with employees in relation to a change to their regular roster or ordinary hours of work and allow for the representation of those employees for the purposes of that consultation.

[8] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement and is attached at Annexure B of this decision.

Better off overall test

[9] With respect to the better off overall test (BOOT) under s.186 of the Act the Agreement contains some more beneficial terms than the Passenger Vehicle Transportation Award 2010, being the relevant reference instrument for the purposes of the BOOT, including higher base rates of pay, full pay for “waiting time” and an extra payment of 30 minutes per shift in addition to driving time. However the rates of pay are only higher under the Agreement for Award Grades 1-3.

Classifications

[10] The Commission wrote to the applicant noting that the rates of pay under the Agreement are not high enough such that Grade 4, 5, and 6 employees under the Award would be better off under the Agreement.

[11] In response the applicant confirmed with the Commission that all employees under the Agreement are Grade 3 Award equivalent, and that employees classified under Award grades 4, 5 and 6 would not be employed under the Agreement. The applicant has provided further certainty of this by way of an undertaking which has been signed by Mr Ryan, the employee bargaining representative.

Conclusion

[12] Taking into account the higher rates of pay and other more beneficial term and the undertaking provided, I am satisfied that the Agreement results in employees being better off under the Agreement.

Undertaking

[13] The undertaking is taken to be a term of the Agreement and a copy is attached at Annexure C. The undertaking is not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertaking should be brought to the attention of the employees covered by the Agreement by the applicant.

[14] 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.

[15] 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 will be 1 September 2020.

DEPUTY PRESIDENT

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Annexure A

Annexure B

Annexure C