Jack James & Sons Pty Ltd

[2014] FWCA 2023

[2014] FWCA 2023

FAIR WORK COMMISSION

DECISION

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

Jack James & Sons Pty Ltd
(AG2014/3990)

JACK JAMES & SONS PTY LTD FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 27 MARCH 2014

Application for approval of the Jack James & Sons Pty Ltd Fair Work Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Jack James & Sons 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 Jack James & Sons Pty Ltd Fair Work Agreement 2012 (the ‘Agreement’). The Agreement is to cover 3 employees who are engaged as Bus Drivers performing route and school bus work in and around Trangie, New South Wales. I note that the applicant also employs a number of other employees, such as administrative staff and mechanics, who are covered by separate Awards. 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 5 February 2014, and voting for the Agreement’s approval took place on 27 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a show of hands, all 3 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 March 2014. While I note that this is outside the statutory time limit contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the lodgement date to 14 March 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr N James, Director, 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 Jamessaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including a limit to the accumulation of Time Off of ten days over forty weeks and the removal of a penalty rate of 15% 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, enhanced overtime entitlements, more generous annual leave loading and longer minimum engagements. 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 26 March 2014, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales appeared with Mr N James 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 noted that the Agreement is in very similar terms to other enterprise agreements in the private bus transport sector which have been approved by the Commission in recent times. He explained that the 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. Mr James confirmed that the increases due in 2013 and 2014 had already been passed onto 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 Jack James & Sons Pty Ltd Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 2 April 2014 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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