Rover Coaches Pty Ltd

[2022] FWCA 756

[2022] FWCA 756

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Rover Coaches Pty Ltd

(AG2022/20)

rover coaches coach and charter drivers’ enterprise agreement 2021

Passenger vehicle transport (non rail) industry
Commissioner Matheson	SYDNEY, 2 MARCH 2022

Application for approval of the Rover Coaches Coach and Charter Drivers’ Enterprise Agreement 2021.

1. An application has been made for approval of an enterprise agreement known as the Rover Coaches Coach and Charter Drivers’ Enterprise Agreement 2021 (Agreement). The application was made by Rover Coaches Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Clause 3 of the Agreement contains an apparent error in that it set out dates for increases to the rates of pay that have long passed. The Applicant submitted that employees voted upon the Agreement with a clear understanding that the rate increases would apply from 1 July 2022 during the term of the Agreement. The Applicant applied for a correction pursuant to s.586 of the Act so that clause 8(2) of the Agreement is deleted and replaced with the words:

‘The prescribed rates of pay shall be increased on the first pay period after 1 July 2022, 1 July 2023 and 1 July 2024.’

1. I am satisfied that this amendment should be allowed and that it is appropriate to make the amendment pursuant to s.586 of the Act. I make the amendment.

1. The Applicant also advised that clause 5 of the Agreement contained an apparent error in that it defined ‘Award’ as an earlier version of the modern award that covered employees at the test time. The Applicant sought a correction to clause 5 of the Agreement so that the definition of ‘Award’ is reflected as follows:

““The Award” shall mean the Passenger Vehicle Transport Award 2020.”

1. I am satisfied that this amendment should be allowed and that it is appropriate to make the amendment pursuant to s.586 of the Act. I make the amendment.

1. There is a further error at clause 8(3)(i) of the Agreement in that the text ‘(Delete)’ appears at the end of that clause. The Applicant sought a correction to clause 8(3)(i) of the Agreement to remove the text ‘(Delete)’.

1. I am satisfied that this amendment should be allowed and that it is appropriate to make the amendment pursuant to s.586 of the Act. I make the amendment.

1. Since the Agreement was made, the Commission sought further information in relation concerns raised regarding the better off overall test (BOOT). However, clause 8.3(i) of the Agreement provides that ‘at no time during any pay week will an employee not receive an aggregate payment for the week which is not at least $5.00 more than any payments for the week to which they would be entitled under the Award. In this regard a reconciliation will take place each week prior to the payment of wage to ensure this clause is adhered to.’

2. The Applicant sought to rely on this provision in response to concerns in relation to the BOOT.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 March 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A