Pheasant Pty Ltd t/as Kiama Coachlines

[2013] FWCA 6967

[2013] FWCA 6967

FAIR WORK COMMISSION

DECISION

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

Pheasant Pty Ltd t/as Kiama Coachlines
(AG2013/8871)

KIAMA COACHES PTY LTD FAIR WORK AGREEMENT 2012

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

Application for approval of the Kiama Coaches 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 Pheasant Pty Ltd t/as Kiama Coaches (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Kiama Coaches Pty Ltd Fair Work Agreement 2012 (the ‘Agreement’). The Agreement is to cover 14 employees who are employed as Bus Drivers performing Route and School Bus work. 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 11 July 2013, and voting for the Agreement’s approval took place on 23 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 12 of the 13 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 29 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Bradford, 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 Bradfordsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including a minimum engagement of one hour for casual workers on Monday to Friday, a reduction in the amount of time off able to be accumulated over six months and a lower penalty rate for work performed between 6pm and 6am. 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. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 28 and 27 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 10 September 2013, Mr N Shuttleworth of the Bus & Coach Industrial Association of New South Wales,appeared with Mr G King 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 noted that the pay increases from 1 July 2012 and 1 July 2013 had already been paid.

[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 Kiama Coaches Pty Ltd Fair Work Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 17 September 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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