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

Printed by authority of the Commonwealth Government Printer

The applicant, Lodges Bus Service Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for bus and coach drivers within the company. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the agreement was made in accordance with the relevant provisions of the Fair Work Act and whether it contained the necessary "no disadvantage" test. This test requires that employees are not be worse off financially or in terms of conditions of employment as a result of the agreement. Additionally, the court needed to assess if the agreement had been genuinely negotiated and whether it complied with procedural fairness requirements.

The court examined the negotiation process and found that it had been conducted in good faith, with adequate representation of both parties. The agreement was scrutinised to ensure it did not adversely affect the employees, and it was confirmed that all necessary provisions were included. The court held that the agreement met the legislative requirements and did not result in any employee being worse off. Consequently, the court approved the enterprise agreement.

The final orders of the court were that the Lodges Bus Service Bus & Coach Drivers Enterprise Agreement 2015 be approved in accordance with section 234 of the Fair Work Act 2009. The agreement was to be registered by the Fair Work Commission and would come into effect from the date of the court's approval.

Lodges Bus Service Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established