Surfside Buslines Pty Ltd

[2014] FWCA 6859

[2014] FWCA 6859

FAIR WORK COMMISSION

DECISION

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

Surfside Buslines Pty Ltd
(AG2014/8929)

SURFSIDE BUSLINES PTY LTD UNION ENTERPRISE AGREEMENT 2014

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

Application for approval of the Surfside Buslines Pty Ltd Union Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Surfside Buslines 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 Surfside Buslines Pty Ltd Union Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Transport Workers’ Union of Australia (the ‘Union’) and Mr W Campbell, a non-Union Employee Bargaining Representative (EBR) and is to cover 663 employees who are engaged in the driving, cleaning and detailing of buses for the applicant’s business based in Robina, Queensland. 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 10 February 2014, and voting for the Agreement’s approval took place between 25 and 27 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 321 of the 457 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Brown 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 Brownsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a less generous meal allowance, the removal of some non-applicable allowances and the removal of penalty rates of time and one half for casual employees who work more than 38 hours per week or ten hours per day. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher base rates of pay, a split shift allowance in excess of the reference instruments and longer minimum engagements for casual employees. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.11 and 6.3 respectively, and a disputes resolution procedure at clause 6.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 30 September 2014, Mr I MacDonald of the Australian Public Transport Industrial Associationappeared with Mr D Brown and Ms K Brewer for the applicant, Mr A Carter for the Union and Mr W Campbell appeared in his capacity as an EBR. The Union had filed a Declaration in relation to the application (Form 18) giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. While the Union supported the approval of the Agreement, it did raise some issues as to the definition of ‘Shift Workers’ under the Agreement and the period of 90 days for the unilateral termination of independent flexibility arrangements being in excess of that allowed under s 203 of the Act. The applicant provided undertakings amending the definition of ‘Shift Worker’ in the Agreement and setting out that individual flexibility arrangements can be unilaterally terminated by giving no more written notice than required under s 203 of the Act. These undertakings were accepted by the Union and, pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’. Mr MacDonald 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 rates of pay are to be increased by 3% or in accordance with the Labour Price Index, Queensland, Private and Public, all industries, whichever is the greater in October 2014, October 2015, October 2016 and October 2017, though for Detailers, the first of these increases takes place on 7 July 2014, rather than in October 2014. Mr Carter supported the submissions of Mr MacDonald.

[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, 188, 190, 191, 192 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Surfside Buslines Pty Ltd Union Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 7 October 2014 and have a nominal expiry date of 6 October 2018.

DEPUTY PRESIDENT

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