The Entrance Red Bus Services Pty Limited

[2013] FWCA 5787

[2013] FWCA 5787

FAIR WORK COMMISSION

DECISION

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

The Entrance Red Bus Services Pty Limited
(AG2013/2169)

THE ENTRANCE RED BUS SERVICES PTY LTD PASSENGER VEHICLE INDUSTRY ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 AUGUST 2013

Application for approval of The Entrance Red Bus Services Pty Ltd Passenger Vehicle Industry Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Entrance Red Bus Services 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 Entrance Red Bus Services Pty Ltd Passenger Vehicle Industry Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 136 employees who are employed wholly or principally as passenger vehicle drivers, and other passenger vehicle industry employees, including Mechanics, Administration Staff, Cleaners and Refuellers. 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 24 June 2013, and voting for the Agreement’s approval took place on 19 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 92 of the 199 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 31 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms L Griffiths, Financial Controller 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 Griffithssaid that the Agreement does contain a term which is less beneficial than one under the reference instruments, being the removal of a penalty rate of 15% for work performed after 7:00pm or before 6:00am. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including rates of pay that are significantly higher than those under the Modern Award, an allowance for issuing tickets and fares and annual leave loading of 25%. Rates of pay are to be adjusted by 3.5% on 1 July 2012, 3.3% on 1 July 2013 and 3.3% on 1 July 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 32 and 31 respectively, and a disputes resolution procedure at clause 30 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 August 2013, Mr I MacDonald of the Australian Public Transport Industrial Association,appeared with Ms L Griffiths for the applicant. 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 the Agreement was based on a template that had been negotiated in the industry with the Transport Workers’ Union of Australia and that the Agreement had only one grade of pay in the Agreement, although even for Supervisors, this was significantly higher than the corresponding rates under the Award. Ms Griffiths said that the applicant used Individual Flexibility Agreements where appropriate to pay employees higher pay than the base rates under the Agreement and this would include supervisors.

[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 Entrance Red Bus Services Pty Ltd Passenger Vehicle Industry Enterprise Agreement 2013 Pursuant to s 54 of the Act, the Agreement shall operate from 14 August 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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