Lodges Bus Service Pty Ltd

[2016] FWCA 888

[2016] FWCA 888

FAIR WORK COMMISSION

DECISION

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

Lodges Bus Service Pty Ltd
(AG2015/7158)

LODGES BUS SERVICE BUS & COACH DRIVERS ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 11 FEBRUARY 2016

Application for approval of the Lodges Bus Service Bus & Coach Drivers Enterprise Agreement 2015

[1] An application has been made by Lodges Bus Service Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Lodges Bus Service Bus & Coach Drivers Enterprise Agreement 2015 (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 covers employees engaged by the employer as either a “bus driver” or a “coach driver” at the employer’s Culcairn and Lavington depots. As per s.186(3) of the Act.
I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational and geographical distinction of the employees.

Flexibility Term

[3] The flexibility term at cl.20 within the Agreement does not to meet the requirements of section 203(2)(b) of the Act which stipulates that any individual flexibility arrangement under agreed to under the flexibility term must only pertain to permitted matters and prohibits against unlawful terms.

[4] The model flexibility term at schedule 2.2 of the Fair Work Regulations 2009 is taken to be a term of the Agreement, and is attached at Annexure A of this decision.

Better off overall test (BOOT)

[5] 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.

[6] The Agreement provides a loaded rate of pay which incorporates weekend and public holiday penalties. The rate of pay is higher than the corresponding minimum rate of pay under the Award.

[7] The Commission was concerned that certain employees whose ordinary hours may be confined to weekend work or ‘special hirings’ may not be better off under the Agreement.

[8] In addressing the Commission’s concerns, the applicant provided the following undertakings:

a. Permanent employees shall not be rostered to solely work on Sundays or special hirings;

b. Casual employees who work on weekends or public holidays will be paid no less than the Award; and

c. Casual employees who have undertaken an extended charter or tour work as part of their weekly roster shall not, for the period of the weekly roster, receive an amount which is less than the Award.

[9] I am satisfied that the undertakings adequately address the concerns of the Commission with regard to weekend work, public holiday work and ‘special hirings’.

[10] The undertakings are taken to be a term of the Agreement and attached at Annexure B of this decision.

Approval

[11] Taking into account the higher rate of pay under the Agreement when compared to the Award and the undertakings provided, I am satisfied that the Agreement results in employees being better off under the Agreement.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[13] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 18 February 2016. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Annexure A

Annexure B

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