Nasrella Pty Ltd

[2013] FWCA 6945

[2013] FWCA 6945

FAIR WORK COMMISSION

DECISION

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

Nasrella Pty Ltd
(AG2013/8738)

RYANS BUS SERVICE FAIR WORK AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 SEPTEMBER 2013

Application for approval of the Ryans Bus Service Fair Work Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Nasrella 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 Ryans Bus Service Fair Work Agreement 2013 (the ‘Agreement’). The Agreement is to cover 42 employees who are employed by the applicant wholly or principally as bus drivers providing services under a Rural and Regional Bus Industry Contract. 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 27 July 2013, and voting for the Agreement’s approval took place on 16 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 30 of the 33 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr N Tooth, Operations 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 Toothsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a shorter Monday to Friday minimum engagement, a reduction in the amount of time off able to be accumulated in six months and a lower penalty rate for work performed between 7pm and 6am. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of, those under the reference instruments, including higher rates of pay, longer minimum engagements on Saturdays, Sundays and public holidays and more generous overtime entitlements. 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 26 respectively, and a disputes resolution procedure at clause 25 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 5 September 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales appeared 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 said that the pay increases from 1 July 2012 and 1 July 2013 had already been passed on to the employees.

[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 Ryans Bus Services Fair Work Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 12 September 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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