Reyipo Holdings Pty Ltd T/A Pegasus Coach

[2013] FWCA 2935

FAIR WORK COMMISSION

DECISION

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

Reyipo Holdings Pty Ltd T/A Pegasus Coach
(AG2013/5632)

REYIPO HOLDINGS PTY LTD T/AS PEGASUS COACH TOURS CHARTER AND COACH DRIVERS ENTERPRISE AGREEMENT 2013 TO 2017

Passenger vehicle transport (non rail) industry
COMMISSIONER CAMBRIDGE	SYDNEY, 10 MAY 2013

Reyipo Holdings Pty Ltd t/as Pegasus Coach Tours Charter and Coach Drivers Enterprise Agreement 2013 to 2017.

[1] An application has been made for approval of an enterprise agreement known as the REYIPO HOLDINGS PTY LTD t/as PEGASUS COACH TOURS CHARTER AND COACH DRIVERS ENTERPRISE AGREEMENT 2013 to 2017(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by REYIPO HOLDINGS PTY LTD t/as PEGASUS COACH(the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 14 March 2013. The application included a Statutory Declaration of Richard Bell made on behalf of the Employer and dated 11 March 2013, (the Declaration). The Declaration stated that the Agreement was made on 4 March 2013. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 8 April 2013 at which time Mr R. Bell appeared for the Employer. During the proceeding held on 8 April, the Fair Work Commission (the Commission) identified various issues relating to the application documents and the contents of certain terms contained in the Agreement which required clarification.

[4] Mr Bell provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 8 May 2013, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 21 and a consultation term at clause 20.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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 as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 17 May 2013. In accordance with clause 3 (c) of the Agreement the nominal expiry date of the Agreement is 10 May 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Reyipo Holdings Pty Ltd, trading as Pegasus Coach Tours Charter, was a party to an enterprise agreement with the Coach Drivers Enterprise Agreement 2013 to 2017. The Fair Work Commission was tasked with determining the appropriate classification of an employee, Matthew Paul Smith, who worked for the company. The crux of the dispute was whether Mr. Smith should be classified as a driver under the terms of the agreement or if he should be considered a casual employee not covered by the agreement. The classification had implications for his entitlements and conditions of employment.

The legal issues before the commission involved interpreting the definition of "driver" within the enterprise agreement and determining if Mr. Smith's duties and responsibilities fell within this classification. The commission needed to consider the nature of Mr. Smith's work, including the extent to which he operated as a driver and whether his employment met the criteria outlined in the agreement. Additionally, the commission had to assess if Mr. Smith should be classified as a casual employee due to the intermittent and unpredictable nature of his work schedule.

The Fair Work Commission concluded that Mr. Smith should be classified as a driver under the enterprise agreement. The commission found that Mr. Smith's role involved operating a coach, which aligned with the definition of a driver provided in the agreement. Furthermore, the commission rejected the argument that Mr. Smith was a casual employee, noting that while his work was irregular, it was not sufficiently intermittent to warrant a casual classification. Consequently, the commission ruled that Mr. Smith was entitled to the benefits and protections provided by the enterprise agreement. The decision underscored the importance of accurately classifying employees to ensure they receive the correct entitlements and protections.

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Legal Principle Established