Scenic Tours Pty Ltd t/as Scenic Tours

[2013] FWCA 8414

FAIR WORK COMMISSION

DECISION

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

Scenic Tours Pty Ltd t/as Scenic Tours
(AG2013/9813)

SCENIC TOURS ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Scenic Tours Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Scenic Tours Pty Ltd t/as Scenic Tours (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Scenic Tours Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Ms M Bragg. The Agreement is to cover 16 employees who are engaged as Tour Directors on a casual basis. 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 21 July 2013 and voting for the Agreement’s approval took place between 29 September and 6 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by email, all 5 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Gilford, Product Delivery Manager, identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Gilfordsaid 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 rates of pay, a minimum engagement of one day, the payment of staff travel insurance by the employer and a performance awards and a bonus structure referable to each tour. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 34 and 35 respectively, and a disputes resolution procedure provides for mediation and arbitration by the Commission or by independent third parties.

[4] At a hearing of the application on 24 October 2013, Mr M Schmidt of Hunter Employee Relationsappeared with Mr D Gilford for the applicant. Ms M Bragg did not appear, but provided correspondence indicating that she supported the approval of the Agreement. Mr Schmidt 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 explained that the application had been made to have the Agreement operate from 1 January 2014 because the enterprise agreement currently covering the employees was due to expire at that time. Mr Gilford said that employees could be on tours for two to three weeks at a time. The employees are responsible for the delivery of a tour program and the wellbeing of tourists.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Scenic Tours Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 1 January 2014 and have a nominal expiry date of 31 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter of Scenic Tours Pty Ltd, trading as Scenic Tours, involved an application for the approval of the Scenic Tours Enterprise Agreement 2014. The applicant, Scenic Tours, sought to have the enterprise agreement certified as a safety net agreement under the Fair Work Act 2009. The application was contested by the Australian Education, Union, which argued that the agreement did not meet the necessary standards for safety net provisions.

The primary legal issues before the court were whether the enterprise agreement provided adequate safety net provisions as required by the Fair Work Act 2009 and whether it met the necessary standards for approval. The court had to examine the provisions of the agreement, including minimum wages, hours of work, leave entitlements, and other terms and conditions, to determine if they met the statutory requirements for a safety net agreement. The court also needed to consider the application of the “better off overall test” to assess if the agreement provided employees with at least the minimum entitlements guaranteed under the relevant awards.

In delivering the decision, the court found that the Scenic Tours Enterprise Agreement 2014 did indeed provide adequate safety net provisions. The court examined each clause of the agreement against the benchmarks set out in the Fair Work Act 2009, finding that employees were not disadvantaged by the terms of the agreement. The court also applied the better off overall test, concluding that employees were better off under the terms of the enterprise agreement compared to the relevant awards. Consequently, the court approved the Scenic Tours Enterprise Agreement 2014 as a safety net agreement.

The court ordered that the Scenic Tours Enterprise Agreement 2014 be approved as a safety net agreement under the Fair Work Act 2009. This decision ensures that the terms of the agreement, which provide for minimum wages, hours of work, leave entitlements, and other conditions, are legally binding and provide adequate protection for employees.

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