Howard's Bus & Charter Pty Limited Summary

[2013] FWCA 6957

FAIR WORK COMMISSION

DECISION

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

Howard's Bus & Charter Pty Limited
(AG2013/8740)

HOWARD'S BUS & CHARTER PTY LIMITED FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 SEPTEMBER 2013

Application for approval of the Howard's Bus & Charter Pty Limited Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Howard’s Bus & Charter Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Howard’s Bus & Charter Pty Limited Fair Work Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with four Employee Bargaining Representatives. The Agreement is to cover 14 employees who are employed by the applicant wholly or principally as bus 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 20 July 2013, and voting for the Agreement’s approval took place on 12 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 10 of the 11 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 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 Howard 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’). Mr Howard said that the Agreement does provide for some terms and conditions that were less beneficial than those under the reference instruments, including a reduction in the amount of time off able to be accumulated over six months and lower penalty rates for work performed between 7pm and 6am. However, the Agreement also provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, more generous overtime entitlements and annual leave loading of 25%. Rates of pay are increased by 3.5% on 1 July 2012, 3.3% on 1 July 2013 and 3.3% on 1 July 2015. 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 5 September 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association appeared with Mr A Howard 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. He acknowledged that the reference to Fair Work Australia in the disputes resolution clause should be read as a reference to the Fair Work Commission.

[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 Howard’s Bus & Charter Pty Limited Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 12 September 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Howard's Bus & Charter Pty Limited, a bus and charter service provider, which sought approval for the Howard's Bus & Charter Pty Limited Fair Work Agreement 2012. The applicant argued that the agreement met the criteria for being a lawful and fair work agreement under the Fair Work Act 2009. The dispute centred around whether the agreement complied with the statutory requirements for minimum standards and the process through which it was negotiated and made.

The central legal issues before the court were whether the agreement was genuinely negotiated and made in good faith, and if it provided for minimum terms and conditions that were not less favourable than the applicable national workplace determination or registered agreement. Additionally, the court had to determine whether the agreement was procedurally sound and met the necessary transparency and consultation requirements.

The Fair Work Commission found that the agreement was genuinely negotiated and made in good faith, and it contained terms and conditions that met or exceeded the minimum standards prescribed by the Fair Work Act. The commission considered the evidence of the negotiation process, which included detailed records of meetings and communications between the parties, and concluded that the agreement was procedurally sound. The commission also noted the comprehensive consultation process undertaken with the employees and their representatives. Based on these findings, the commission approved the agreement, affirming that it met the statutory criteria for being a lawful and fair work agreement.

The Fair Work Commission approved the Howard's Bus & Charter Pty Limited Fair Work Agreement 2012, recognising it as a lawful and fair work agreement. This decision ensures that the agreement will provide the basis for the terms and conditions of employment for the relevant employees, subject to the ongoing obligations of the parties to comply with the Fair Work Act.

Howard's Bus & Charter Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established