Moonshadow Tours P/L T/A Port Stephens 4WD Tours

[2016] FWCA 5749

[2016] FWCA 5749

FAIR WORK COMMISSION

DECISION

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

Moonshadow Tours P/L T/A Port Stephens 4WD Tours
(AG2016/1816)

PORT STEPHENS 4WD DRIVERS ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 17 AUGUST 2016

Application for approval of the Port Stephens 4WD Drivers Enterprise Agreement 2016

[1] An application has been made by Moonshadow Tours P/L T/A Port Stephens 4WD Tours (the applicant) for the approval of an enterprise agreement known as the Port Stephens 4WD Drivers Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all employees who drive 4WD vehicles for the applicant. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Title of agreement in Notice of Employee Representational Rights (NERR)

[3] The Commission raised with the applicant that the title of the agreement in the NERR provided to the employees who would be covered by the Agreement did not correspond with the title given in the title clause of the Agreement.

[4] The applicant provided the explanation that during negotiations between the employer and employees a decision was made to change the name of the Agreement from “Moonshadow Tours Pty Ltd T/A Port Stephens 4WD Tours Drivers Agreement 2016” to the current title to better reflect the nature of the work and to provide a more simplistic title.

Better off overall test

[5] With respect to the better off overall test (BOOT) under s.186 of the Act, the base rates of pay under the Agreement are significantly higher than the rates under the Passenger Vehicle Transportation Award 2010 (the Award), being the relevant reference instrument for the purposes of the BOOT. However, the higher weekday rates of pay do not appear to adequately compensate some employees who work significant hours in addition to their ordinary hours and significant hours on weekends, weeknights and public holidays.

[6] The Commission wrote to the applicant with concerns that employees who work such hours may be worse off under the Agreement. In reply, the applicant provided an undertaking which is annexed to this decision at Annexure A. The undertaking in essence states that employees will not receive any less than the Award entitlements when working the hours outlined above.

Conclusion

[7] Taking into account the higher rates of pay under the Agreement when read in conjunction with the undertaking and when compared with the Award, I am satisfied that the Agreement results in employees being better off under the Agreement. The undertaking is not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertaking does not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertaking should be brought to the attention of the employees by the applicant.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 17 August 2019.

DEPUTY PRESIDENT

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Annexure A