SD & KA Cullen Pty Ltd

[2016] FWCA 2455

[2016] FWCA 2455

The attached document replaces the document previously issued with the above code on 22

April 2016.

The title of the enterprise agreement in paragraph [5] has been amended.

Rachel Wong

Relief Associate to Deputy President Sams

Dated 22 April 2016 [2016] FWCA 2455

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

SD & KA Cullen Pty Ltd T/A Cullens Bus Lines, Rutherglen Coachlines

(AG2016/2727)

SD & KA CULLEN PTY LTD (TRADING AS CULLEN’S BUS LINES

AND RUTHERGLEN COACHLINES) ENTERPRISE AGREEMENT

2016

Passenger vehicle transport (non rail) industry

DEPUTY PRESIDENT SAMS SYDNEY, 22 APRIL 2016

Application for approval of the SD & KA Cullen Pty Ltd (trading as Cullen’s Bus Lines and

Rutherglen Coachlines) Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed

by SD & KA Cullen Pty Ltd T/A Cullens Bus Lines, Rutherglen Coachlines (the ‘applicant’)

which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single

enterprise agreement to be known as the SD & KA Cullen Pty Ltd (trading as Cullen’s Bus

Lines and Rutherglen Coachlines) Enterprise Agreement 2016 (the ‘Agreement’). The

Agreement was negotiated with Mr C Gamble, a nominated Employee Bargaining

Representative (EBR) and is to cover 4 employees who are engaged as School Bus and

Charter Coach Drivers. 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 in early May 2015,

and voting for the Agreement’s approval took place on 11 March 2016. The time limits under

s 181(2) of the Act are thereby satisfied. In a vote for the Agreement's approval, 3 of the 4

employees who cast a valid vote agreed to approve the Agreement. The application for

approval of the Agreement was lodged on 5 April 2016. While this is outside the statutory

time period contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to

extend the period for filing to 5 April 2016.
[2016] FWCA 2455

[3]        In the Employer’s Declaration in support of the application (Form F17) Mr S Cullen,

Managing Director, 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 Cullen said that the Agreement does provide for one condition that is less

beneficial than the reference instruments, being a reduction to penalty rates for work

performed on non-rostered/voluntary overtime hours. However, the Agreement provides for

higher rates of pay and a series of continuous services grants. I am satisfied that the

Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and

consultation terms at clauses 15 and 16 respectively, and a disputes resolution procedure at

clause 12 provides for conciliation and arbitration by the Commission. I note that the

Agreement is in similar terms to a number of other agreements covering bus drivers, which

have been approved by the Commission.

[4]        At a hearing of the application on 14 April 2016, Mr R Lambert of Wintergreen

Australia Pty Ltd appeared with Mr S Cullen for the applicant and Mr C Gamble appeared in

his capacity as EBR. Mr Gamble had also filed a Declaration in relation to the application

(Form 18A) setting out that the employees he represented supported 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 1 January and 1 July each year 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. Mr Gamble supported the

submissions of Mr Lambert.

[2016] FWCA 2455

[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 SD & KA Cullen Pty Ltd (trading as Cullen’s Bus Lines and Rutherglen Coachlines)

Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 21

April 2016 and have a nominal expiry date of 31 March 2018.

DEPUTY PRESIDENT

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