Portsea Passenger Service Pty Ltd

[2015] FWCA 3119

[2015] FWCA 3119

FAIR WORK COMMISSION

DECISION

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

Portsea Passenger Service Pty Ltd
(AG2015/2497)

PORTSEA PASSENGER SERVICE P/L ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MAY 2015

Application for approval of the Portsea Passenger Service P/L Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Portsea Passenger 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 Portsea Passenger Service P/L Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and is to cover 48 employees who are engaged as bus and coach drivers providing services on and around the Mornington Peninsula, Victoria. 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 12 March 2014, and voting for the Agreement’s approval took place on 4 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the approval of the Agreement, all 36 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 April 2015. While I note that this is significantly outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for lodgement to 22 April 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Hamilton, General Manager, Operations identified the Passenger Vehicles 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 Hamiltonsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher base rates of pay and a serious of continuous service grants. Base rates of pay are to be adjusted on 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. 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 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 5 May 2015, Mr C Broadbent, Solicitorappeared for the applicant and Ms S Manos for the Union. Mr Broadbent 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 offered undertakings clarifying rates of pay for Casual School Bus Supervisors, the shift allowance for work performed after 10:00pm and the operation of the adjustments to base rates of pay. Ms Manos supported the submissions of Mr Broadbent and indicated that the Union did not object to these undertakings. Pursuant to s 191(1) of the Act, these undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’. 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.

[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, 188, 190, 191 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Portsea Passenger Service P/L Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 12 May 2015 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

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