DECISION

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

LJ & NJ Wadley Pty Ltd
(AG2016/971)

LJ & NJ WADLEY PTY LTD ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 31 MAY 2016

Application for approval of the LJ & NJ Wadley Pty Ltd Enterprise Agreement 2016

[1] An application has been made by LJ & NJ Wadley Pty Ltd (the applicant) for the approval of an enterprise agreement known as the LJ & NJ Wadley Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement is proposed to cover 35 casual employees who are engaged in the provision of car transport to and from school for disabled children as part of the NSW Assisted School Travel Scheme (the Scheme). The Scheme is provided to enable disabled children to get to and from school safely. Pursuant to s.186(3) of the Act, I am satisfied that the group of employees was fairly chosen based on the operational distinctiveness of the proposed coverage.

[3] In its application, the applicant stated that the Agreement passes the better off overall test (BOOT) as required under s.186 of the Act. In the event that the Agreement was not approved under s.186 of the Act, the applicant sought approval of the Agreement under s.189 of the Act, on the ground that because of exceptional circumstances, approval would not be contrary to the public interest.

Better off overall test (BOOT)

[4] The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[5] The rates of pay and relevant entitlements are as per the Award. However, as noted in the employer’s statutory declaration (F17) there are less beneficial provisions under the Agreement:

a. The Agreement entitles casual employees a minimum payment of 3 hours for each day’s engagement as opposed to 3 hours payment per engagement under the Award; and

b. The Agreement offers part time employees a reduced two hour minimum payment per day, in comparison to three hours per engagement under the Award.

[6] In support of the application, the applicant states that the Agreement provides more beneficial terms under the Agreement which are not conferred under the Award:

a) Where a student is absent for up to five days in any one absenteeism period, employees will be continued to be paid; and

b) The work vehicle is used by the employees to travel to and from work at no cost to the employee.

[7] Taking into account the rates of pay and other entitlements are only equivalent to the Award, and factoring in a reduced minimum payment per engagement for employees, I am not persuaded that the benefits conferred by the Agreement means that employees are better off under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCA 3284
Decision Date: 31 MAY 2016

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, LJ & NJ Wadley Pty Ltd, sought approval of the LJ & NJ Wadley Pty Ltd Enterprise Agreement 2016. The respondent, the National Tertiary Education Union, opposed the approval of the agreement, arguing that it did not meet the requirements of the Fair Work Act 2009. The applicant submitted that the agreement was fair and reasonable, and complied with all necessary provisions of the Act.

The primary legal issue before the Commission was whether the agreement met the legal criteria for approval under section 231 of the Fair Work Act. This involved examining whether the agreement contained all the required terms, provided for a safety net of minimum entitlements, and was free from prohibited content. Additionally, the Commission had to determine whether the agreement had been made in accordance with the procedural requirements of the Act, including whether the appropriate bargaining representatives had been involved in the negotiation process.

The Commission found that the agreement contained all the necessary terms and provided for a safety net of minimum entitlements. The Commission also determined that the agreement did not contain any prohibited content and had been made in accordance with the procedural requirements of the Act. The Commission was satisfied that the agreement was fair and reasonable, and approved it under section 231 of the Fair Work Act. The respondent's objections were dismissed.

The Fair Work Commission approved the LJ & NJ Wadley Pty Ltd Enterprise Agreement 2016, finding it to be fair and reasonable, and in compliance with the legal requirements of the Fair Work Act. The Commission dismissed the respondent's objections and accepted the applicant's submission that the agreement met all necessary criteria for approval.

Orders