J&M Sinclair Pty Ltd

[2015] FWCA 2555

[2015] FWCA 2555

FAIR WORK COMMISSION

DECISION

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

J&M Sinclair Pty Ltd
(AG2015/614)

J & M SINCLAIR PTY LTD ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 14 APRIL 2015

Application for approval of the J & M Sinclair Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by J&M Sinclair 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 J & M Sinclair Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 65 employees who are engaged in the provision of car transport to and from school for disabled children.

[2] The employees were last notified of their representational rights on 12 February 2015 and voting for the Agreement’s approval took place on 9 March 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 64 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 March 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Sinclair identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Sinclairsaid that the Agreement does provide for one term that is less beneficial than the Award in that the Agreement provides for a three hour minimum daily engagement, rather than four hours. However, the Agreement provides for employees to be paid for student absences where a student is absent for up to five days in any one absenteeism period. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility clause at clause 5 and the consultation terms at clause 6. A disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 April 2015, Mr P Houlihan of First IR Consultancy Pty Ltdappeared for the applicant. Mr Houlihan 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 arrangements in the enterprise agreement for minimum engagements of three hours, rather than four per day were made in the context of New South Wales legislation requiring that no child can be transported for longer than 90 minutes either going to school or coming home. Mr Houlihan submitted in the alternative that, if the Commission was not satisfied that the Agreement meets the BOOT, there was a public interest in the Agreement being approved pursuant to s 189. I am satisfied that the Agreement meets the BOOT but, even if I am wrong, I am satisfied that, given the important community service the applicant is engaged in, it would not be contrary to the public interest for the employees to work under these arrangements, so as to meet the critical needs of their passengers. Accordingly, I would also approve this Agreement based on the requirements set out in s 189 of the Act; See: Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338.

[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 J & M Sinclair Pty Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 14 April 2015 and have a nominal expiry date of 14 April 2017.

DEPUTY PRESIDENT

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