SeaLink Travel Group Pty Ltd

[2014] FWCA 7185

FAIR WORK COMMISSION

DECISION

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

SeaLink Travel Group Pty Ltd
(AG2014/7664)

SEALINK SOUTH AUSTRALIA ADELAIDE BASED DRIVER ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 14 OCTOBER 2014

Application for approval of the SeaLink South Australia Adelaide Based Driver Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by SeaLink Travel Group 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 SeaLink South Australia Adelaide Based Driver Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with Mr M Broermann, a nominated Employee Bargaining Representative (EBR) and is to cover 25 employees employed as Coach Drivers performing work in Adelaide, South Australia. 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 27 February 2014, and voting for the Agreement’s approval took place between 4 and 15 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 16 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms B Martlew, People and Culture Consultant - South Australia, identified the Passenger Vehicles Transportation Award 2010 [MA000063] and the Transport Workers (South Australian Passenger Vehicles) Award [AN150163]as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Martlewsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of overtime rates, 24 hours of which have been loaded in to permanent and casual rates of pay per fortnight. The Agreement also provides for a number of terms and conditions which are beneficial than, or in excess of those under the reference instruments, including payment of waiting time, an overnight allowance and higher rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 1.8 respectively, and a disputes resolution procedure at clause 1.9 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 October 2014, Mr S Bakewell of EMA Consulting,appeared with Ms D Gauci for the applicant and Mr M Broermann appeared in his capacity as an EBR. Mr Bakewell 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 rates of pay are to be increased with reference National Capital Cities Weighted CPI for the period June to June or in accordance with the Commission’s Minimum Wage Review Decision, whichever is the greater.

[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 SeaLink South Australia Adelaide Based Driver Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 14 October 2014 and have a nominal expiry date of 31 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of SeaLink Travel Group Pty Ltd, the Fair Work Commission was tasked with approving the SeaLink South Australia Adelaide Based Driver Enterprise Agreement 2014. This application arose from negotiations between SeaLink, a transport company, and its employees, who were drivers based in Adelaide. The primary dispute centred around the terms and conditions of employment as outlined in the proposed agreement.

The legal issues before the Commission encompassed whether the proposed agreement complied with the requirements of the Fair Work Act 2009, specifically concerning the procedural fairness of the bargaining process, the substantive fairness of the terms, and the agreement's coverage of all relevant employees. The Commission also needed to consider the bargaining representative's authority to enter into the agreement on behalf of the employees.

The Commission found that the bargaining process was procedurally fair, as it involved genuine negotiations and adequate consultation with the employees. In terms of substantive fairness, the Commission examined whether the proposed terms and conditions were reasonable and equitable, taking into account the interests of both the employer and the employees. After assessing the evidence and arguments presented by both parties, the Commission determined that the agreement's terms were fair and reasonable. The Commission also confirmed that the bargaining representative had the necessary authority to negotiate and enter into the agreement on behalf of the employees. Consequently, the Commission approved the SeaLink South Australia Adelaide Based Driver Enterprise Agreement 2014, thereby resolving the dispute in favour of SeaLink.

The Fair Work Commission's decision to approve the agreement provided a definitive resolution to the application, ensuring that the proposed terms and conditions of employment for the Adelaide-based drivers would be legally binding. This outcome allowed SeaLink to implement the agreed-upon terms, while also providing the drivers with a fair and reasonable enterprise agreement.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established