Sharpe Workplace Solutions

[2014] FWCA 369

FAIR WORK COMMISSION

DECISION

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

Sharpe Workplace Solutions
(AG2013/12033)

SUNSTATE CHARTERS PTY LTD - NSW ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 JANUARY 2014

Application for approval of the Sunstate Charters Pty Ltd - NSW Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sharpe Workplace Solutions (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sunstate Charters Pty Ltd - NSW Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 7 employees who are employed by Sunstate Charters Pty Ltd (the ‘employer’) as bus drivers based in Casino, New South Wales to fulfil a contract with the NSW Government to provide bus services between Casino and the Gold Coast and Casino and Brisbane. Other employees of the employer based in Queensland are covered by a different enterprise agreement. 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 12 September 2013, and voting for the Agreement’s approval took place on 10 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms L Ritchie, Accounts Manager identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Industry - Motor Bus Drivers and Conductors (State) Award [AN120607] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Ritchiesaid that the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, and that there are no less beneficial terms. However, this is not strictly true as the Agreement provides for a higher loaded base rate of pay and does not provide for weekend penalty rates. Rates of pay under the Agreement for work performed Monday to Friday are approximately $6 per hour higher than those under the Modern Award. Employees will also be paid 100% of the loaded wage rage rate for ‘waiting time’ and ‘down time’. 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 6 and 7 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 14 January 2014, Mr D Broanda appeared for the applicant with Ms L Richie of the employer. Mr Broanda 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 employees were rostered on a four days on, two days on cycle over six weeks and that the wage comparisons calculated between the Agreement and the reference instrument had taken this into account. He also explained that the clause 12.2 of the Agreement related to infrequent work undertaken by employees when there was rail maintenance and extra trips were required to be taken into the Sydney CBD.

[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 Sunstate Charters Pty Ltd - NSW Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 21 January 2014 and have a nominal expiry date of 21 January 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application by Sharpe Workplace Solutions to have the Sunstate Charters Pty Ltd - NSW Enterprise Agreement 2013 approved. The applicant sought to have the agreement certified as a low-average earnings agreement, which would exempt it from the provisions of the Fair Work Act 2009 that apply to higher-paid employees. The dispute centred around the classification and remuneration of employees within the enterprise, as well as the broader implications of the agreement's certification on the fairness and effectiveness of the enterprise agreement.

The primary legal issue before the Commission was whether the enterprise agreement met the criteria for certification as a low-average earnings agreement. This required the Commission to consider the average weekly ordinary time earnings of the employees covered by the agreement and to determine whether the agreement was in the public interest. The Commission also had to assess whether the agreement provided for fair and reasonable terms and conditions, including remuneration, and whether it met the requirements of the Fair Work Act.

In delivering its decision, the Commission noted that the average weekly ordinary time earnings of the employees were below the threshold required for a low-average earnings agreement. However, the Commission found that the agreement was in the public interest, as it provided for fair and reasonable terms and conditions for the employees. The Commission also considered the impact of the agreement on the parties' ability to negotiate and the broader implications for the industry. Based on these considerations, the Commission approved the enterprise agreement as a low-average earnings agreement.

The Fair Work Commission approved the Sunstate Charters Pty Ltd - NSW Enterprise Agreement 2013 as a low-average earnings agreement. This decision was based on the average weekly ordinary time earnings of the employees, the public interest considerations, and the overall fairness and reasonableness of the terms and conditions of the agreement. The Commission's decision ensures that the agreement remains in effect and that the parties can continue to negotiate and manage their industrial relations within the framework of the Fair Work Act.

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Legal Principle Established