Kanes Buses Pty Ltd

[2013] FWCA 9740

FAIR WORK COMMISSION

DECISION

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

Kanes Buses Pty Ltd
(AG2013/11813)

KANES BUSES PTY LTD FAIR WORK AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 12 DECEMBER 2013

Application for approval of the Kanes Buses Pty Ltd Fair Work Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kanes Buses 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 Kanes Buses Pty Ltd Fair Work Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with two Employee Bargaining representatives. The Agreement is to cover 13 employees who are engaged as Bus Drivers performing route and school bus work in Henty, New South Wales. I note that the applicant also employs employees in other categories, 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 10 October 2013, and voting for the Agreement’s approval took place on 28 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 13 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Kane, Bus Proprietor, 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 Kanesaid that the Agreement provided for some terms and conditions that were less beneficial than those under the reference instruments, including a limit to the accumulation of rostered days off to five days over six months and reduced penalty rates for work performed between 6pm and 6am. However, the Agreement also 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, slightly more generous overtime rates and longer minimum engagements for work performed on Saturdays and Sundays. 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 clause 26 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 December 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales (‘BusNSW’),appeared with Mr D Kane 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 to a number of Agreements that had recently been approved by the Commission and was based on a template developed by BusNSW and the Transport Workers’ Union of Australia.

[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 Kanes Buses Pty Ltd Fair Work Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 18 December 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application by Kanes Buses Pty Ltd for the approval of their Fair Work Agreement 2013. The application arose from negotiations between the company and its employees, represented by the Rail, Tram and Bus Industry Union. The primary focus of the dispute was whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the Commission was tasked with determining if the agreement was fair and appropriate for the employees it covered, considering factors such as the terms of employment, conditions of work, and dispute resolution mechanisms.

The legal issues before the Commission centred around the compliance of the proposed agreement with the statutory requirements for fairness and appropriateness. This included assessing whether the agreement provided for reasonable terms and conditions of employment, ensured procedural fairness during its negotiation and execution, and whether it was consistent with the broader principles of the Fair Work Act. The Commission also needed to consider the views and submissions of the parties involved, including any concerns raised by the union regarding the potential impact of the agreement on the employees.

In its decision, the Fair Work Commission examined the terms of the proposed agreement in detail, taking into account the submissions from both Kanes Buses Pty Ltd and the Rail, Tram and Bus Industry Union. The Commission found that the agreement met the necessary criteria for approval. It concluded that the agreement was fair and appropriate, providing reasonable terms and conditions for the employees while also ensuring procedural fairness. The Commission acknowledged the union's concerns but ultimately determined that these did not outweigh the overall fairness of the agreement. Consequently, the application for approval of the Fair Work Agreement 2013 was granted.

The final orders of the Commission approved the Fair Work Agreement 2013, allowing it to come into effect as per the stipulated terms. The union was directed to take all necessary steps to inform its members of the approved agreement and to facilitate its implementation. The Commission also outlined that any disputes arising under the agreement would be subject to the dispute resolution provisions contained within the agreement itself, as well as any applicable provisions of the Fair Work Act.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established