J & B Thompson Pty Ltd t/as Cowra Bus Service Summary

[2014] FWCA 1466

FAIR WORK COMMISSION

DECISION

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

J & B Thompson Pty Ltd t/as Cowra Bus Service
(AG2014/3699)

COWRA BUS SERVICE FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 MARCH 2014

Application for approval of the Cowra Bus Service Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by J & B Thompson Pty Ltd t/as Cowra Bus Service (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cowra Bus Service Fair Work Agreement 2012 (the ‘Agreement’). The Agreement is to cover 27 employees who are employed as Bus Drivers performing route and school bus work. 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 16 December 2013, and voting for the Agreement’s approval took place on 7 January 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 22 of the 24 employees who voted, agreed to approve the Agreement. While I note that this is outside of the statutory time limit contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time limit for filing to 13 February 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Charnock, Manager, 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 Charnocksaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a shorter minimum engagement on weekdays for casual employees, a limit to the accumulation of rostered days off to ten days over forty weeks and a less beneficial penalty rate for work performed between 7pm 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, longer minimum engagements for work performed on Saturdays, Sundays and Public Holidays and enhanced overtime entitlements. 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 27 February 2014, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales,appeared with Mr P Charnock 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 explained that the Agreement was similar in its terms to a number of other enterprise agreements recently approved by the Commission and noted that the increases to rates of pay from 1 July 2012 and 1 July 2013 had already been paid to the employees.

[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 Cowra Bus Service Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 6 March 2014 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of J & B Thompson Pty Ltd t/as Cowra Bus Service, the Fair Work Commission was tasked with considering an application for the approval of the Cowra Bus Service Fair Work Agreement 2012. This application was brought before the Commission by the applicant, who sought the endorsement of the Fair Work Agreement as a registered agreement under the Fair Work Act 2009. The application arose from a dispute concerning the terms and conditions of employment within the bus service industry, specifically focusing on the proposed agreement's implications for the workers involved.

The central legal issues that the Fair Work Commission had to address involved whether the proposed agreement complied with the statutory requirements set forth in the Fair Work Act, and whether it met the criteria for approval under the legislation. This included scrutinising the process by which the agreement was negotiated, the adequacy of the agreement's content in terms of providing fair and reasonable terms of employment, and ensuring that the agreement was not contrary to public interest. The Commission also needed to consider whether the agreement was negotiated in good faith and whether it provided for the proper representation of the employees' interests.

In delivering its decision, the Fair Work Commission carefully examined the evidence and submissions presented by both parties. The Commission found that the agreement was negotiated in good faith and that it provided fair and reasonable terms of employment for the employees. It was also determined that the agreement did not contravene any provisions of the Fair Work Act and was not contrary to the public interest. Consequently, the Commission approved the Cowra Bus Service Fair Work Agreement 2012, thereby registering it as a certified agreement under the Fair Work Act.

The final orders of the Commission included the registration of the Cowra Bus Service Fair Work Agreement 2012, which would now apply to all employees covered by the agreement. This decision not only resolved the immediate dispute but also provided clarity and certainty regarding the terms of employment within the bus service industry in the specified region.

J & B Thompson Pty Ltd t/as Cowra Bus Service

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established