Ryan Bros. Bus Service Pty Ltd

[2014] FWCA 7092

[2014] FWCA 7092

FAIR WORK COMMISSION

DECISION

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

Ryan Bros. Bus Service Pty Ltd
(AG2014/9100)

RYAN BROS. BUS SERVICE PTY LTD ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2014

Application for approval of the Ryan Bros. Bus Service Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ryan Bros. Bus Service 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 Ryan Bros. Bus Service Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative (EBR), Mr P Keenan and is to cover 30 employees who are employed as Bus Drivers, Conductors, Ticket Sellers, Cleaners, Greasers and Bowser Attendants at the applicant’s premises in Tullamarine, 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 17 July 2014, and voting for the Agreement’s approval took place between 15 and 17 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 23 of the 25 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Feehan, General Manager, identified the Passenger Vehicle 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 Feehansaid 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. However, this is not strictly true, as there is some reduction to penalty rates for work performed on weekends and public holidays which has then been loaded into higher base rates of pay. The Agreement also provides for a continuous service grant for full time and eligible employees. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 18 respectively, and a disputes resolution procedure at clause 12 erroneously refers to conciliation and arbitration by the Australian Industrial Relations Commission - although I take this to mean the Commission.

[4] At a hearing of the application on 2 October 2014, Mr R Lambert of Wintergreen Australia Pty Ltdappeared with Mr P Feehan for the applicant. Mr Keenan did not appear in his capacity as an EBR, but had filed a Declaration in relation to the application (Form 18A) supporting the approval of the Agreement. Mr Lambert 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. Mr Lambert explained that rates or pay are to be increased on each 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.

[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 Ryan Bros. Bus Service Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 9 October 2014 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

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