Lyons Bus Service Pty Ltd Summary

[2013] FWCA 8393

FAIR WORK COMMISSION

DECISION

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

Lyons Bus Service Pty Ltd
(AG2013/10926)

LYONS BUS SERVICE PTY LTD FAIR WORK AGREEMENT 2012

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Lyons Bus Service 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 Lyons Bus Service 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 Lyons Bus Service Pty Ltd Fair Work Agreement 2012 (the ‘Agreement’). The Agreement is to cover 3 employees who are engaged by the applicant as Bus Drivers performing route and school bus work in Leeton, New South Wales. The company employs a number of other categories of employees, 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 6 September 2013, and voting for the Agreement’s approval took place on 8 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 3 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Lyons, Manager, 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 Lyons said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a reduction in the amount of time off able to be accumulated over six months and lower penalty rates for work performed between 7pm and 6am. However, the Agreement 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, more generous overtime entitlements and annual leave loading of 25%. 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 27 and 28 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 22 October 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association,appeared with Mr R Lyons 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 reaffirmed that the Agreement met the BOOT. 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 the Bus & Coach Industrial Association 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 Lyons Bus Service Pty Ltd Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 29 October 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Lyons Bus Service Pty Ltd applied for the approval of the Lyons Bus Service Pty Ltd Fair Work Agreement 2012. The application was made under section 233 of the Fair Work Act 2009. The applicant is an employer and the respondents are the employees of the company. The dispute centred on the terms and conditions of employment outlined in the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the statutory criteria for approval.

The key legal issues for the Commission to decide were whether the agreement satisfied the "better off overall test" and whether it complied with the "no disadvantage test". Under the better off overall test, the Commission had to be satisfied that the employees, on balance, would be better off financially and in terms of conditions of employment if the agreement was approved compared to the applicable awards or other agreements. The no disadvantage test required the Commission to ensure that no employee would be worse off under the agreement than they would be under the applicable awards or agreements. The Commission also had to consider whether the agreement complied with any relevant minimum standards prescribed by the regulations.

The Fair Work Commission held that the agreement satisfied the better off overall test, as it provided for improved wages and conditions for the employees. The Commission found that the agreement did not result in any employee being worse off, thereby meeting the no disadvantage test. Additionally, the agreement complied with all relevant minimum standards. Consequently, the Commission approved the agreement, finding it to be fair and reasonable in all respects.

The final orders included the approval of the Lyons Bus Service Pty Ltd Fair Work Agreement 2012, which was to be registered and applied as a registered agreement under the Fair Work Act 2009. The agreement was to be binding on all parties, including the employer, employees, and their respective unions.

Lyons Bus Service Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established