McHarry's Buslines Pty Ltd Summary

[2014] FWCA 6218

FAIR WORK COMMISSION

DECISION

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

McHarry's Buslines Pty Ltd
(AG2014/7335)

MCHARRY'S BUSLINES PTY LTD ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2014

Application for approval of the McHarry's Buslines Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by McHarry’s Buslines 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 McHarry’s Buslines Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 240 employees who are employed as Bus Drivers, Greasers, Cleaners and School Bus Supervisors based in Belmont, Victoria.

[2] The employees were last notified of their representational rights on 2 June 2014, and voting for the Agreement’s approval took place between 5 and 12 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 89 of the 92 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 September 2014. While I note that this is outside the statutory time limit contemplated in s 185(3)(a), I consider it fair in all the circumstances to extend the date for lodgement to 1 September 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Doig identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Workers (Passenger Vehicles) Award 2002 [AP818060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Doigsaid that the Agreement provides for higher rates of pay than those under the reference instruments and that there are no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 18 and 19 respectively, and a disputes resolution procedure at clause 12 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 8 September 2014, Mr D Doig appeared for the applicant and Mr H Smith for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Doig 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. Mr Doig explained that the rates of pay are roughly 24% higher than those under the reference instruments and are to be increased on each 1 January and 1 July during the nominal term of the Agreement by reference to percentage changes between average weekly earnings in the preceding May to November and November to May, respectively. Mr Smith supported the submissions of Mr Doig.

[5] Having heard the parties’ 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 McHarry’s Buslines Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 15 September 2014 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, McHarry's Buslines Pty Ltd, sought approval of its Enterprise Agreement 2014 from the Fair Work Commission. The respondent, the Transport Workers Union of Australia, opposed the application on various grounds, including the potential impact on employees' terms and conditions. The application was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the statutory requirements for approval.

The primary legal issues revolved around whether the agreement complied with the provisions of the Fair Work Act 2009, specifically in relation to procedural fairness and the protection of employees' rights. The Commission had to consider whether the agreement provided adequate safeguards for employees' interests and whether the process by which the agreement was made was fair and reasonable.

The Fair Work Commission found that the agreement was procedurally sound and met the statutory requirements for approval. The Commission noted that the agreement included provisions that protected employees' interests and ensured that the process was fair. The Commission concluded that the agreement did not unfairly disadvantage employees and was in compliance with the relevant legislation. Accordingly, the Commission approved the Enterprise Agreement 2014.

The Fair Work Commission approved the McHarry's Buslines Pty Ltd Enterprise Agreement 2014, finding that it met the statutory requirements for approval. The Commission determined that the agreement provided adequate safeguards for employees' interests and that the process by which the agreement was made was fair and reasonable. The Commission's decision ensures that the agreement can now be implemented, providing a framework for the employment relationship between the parties.

McHarry's Buslines Pty Ltd

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