Andrew John Paul v Busways Pacific Pty Ltd
[2024] FWCFB 369
•13 SEPTEMBER 2024
| [2024] FWCFB 369 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Andrew John Paul
v
Busways Pacific Pty Ltd & Others
(C2024/1338)
| VICE PRESIDENT ASBURY DEPUTY PRESIDENT SAUNDERS | BRISBANE, 13 SEPTEMBER 2024 |
Appeal against decision [2021] FWCA 2019 of (former) Deputy President Mansini at Melbourne on 14 April 2021 in matter AG2020/4229
This is an appeal by Andrew John Paul filed on 5 March 2024 pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) against a decision[1] by (former) Deputy President Mansini to approve the Busways Pacific Fair Work Agreement 2020 (the Agreement) issued on 14 April 2021 (the Decision). The Agreement applies to Busways Pacific Pty Ltd (Busways Pacific) and its employees who are employed wholly or principally as bus drivers and who perform bus driving work in New South Wales.
On 12 March 2024, directions were made for the filing of material by Mr Paul and Busways Pacific.
Mr Paul filed evidence and written submissions in relation to permission to appeal and the merits of the appeal on 9 April 2024. Busway filed evidence and written submissions in relation to permission to appeal and the merits of the appeal on 7 May 2024.
On 13 May 2024, we conducted a hearing, in Sydney, in relation to both permission to appeal and the merits of the appeal. At that hearing each party was afforded an opportunity to present oral submissions to supplement their written submissions in relation to the appeal. Permission was granted for both parties to be legally represented as we were satisfied that legal representation would enable the appeal to be dealt with more efficiently, having regard to the complexity of the issues concerning the Commission’s satisfaction that the requirements for approving the Agreement were met. We were also satisfied that no issues of unfairness arose.
Following the conclusion of the hearing, the parties provided further submissions about
the effect of any finding that might be made that the Agreement did not pass the better off overall test (BOOT) when it was first approved.
For the reasons that follow, we have decided not to extend time for the lodgement of the Notice of Appeal and to dismiss the appeal.
The Deputy President’s Decision
The Decision was in relation to an application made by Busways Pacific for approval of the Agreement, which is a single enterprise agreement, pursuant to s 185 of the FW Act.
The Decision commenced by noting that since the application was filed, various concerns had been raised by and with the Commission in relation to the form of the application, whether the Agreement passes the BOOT and whether the employees ‘genuinely agreed’ to the Agreement.
The Deputy President noted that the Transport Workers’ Union of Australia (TWU) was a bargaining representative and that there were 18 individual employee bargaining representatives. Two employee bargaining representatives sought to address the Commission about the application and did so in accordance with Commission directions, pursuant to a confidentiality order made with consent of the Applicant and the TWU.
The Deputy President described the BOOT as follows:
“An enterprise agreement passes the ‘better off overall test’ if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be ‘better off overall’ if the enterprise agreement applied, than if the modern award applied. The assessment will logically focus attention on matters that are objectively verifiable as relative benefits or detriments, including in particular the number of hours that employees can be required to work and the payments employees receive for doing so. The analysis inquires whether employees would be better off overall under the Agreement than under the relevant award, not better off on a line by line or itemised basis. It is plainly permissible under the Act to trade off or vary Award conditions in making an enterprise agreement.”[2]
The Deputy President noted that it is common ground that wage rates in the Agreement are higher than in the Passenger Vehicle Transportation Award 2020 (the Award) and that during the course of the proceedings, various other benefits and some detriments were identified in the terms of the Agreement compared to the Award.
In response to issues raised by the Deputy President, Busways Pacific provided the following undertakings which were referred to in the Decision:
· It would not apply clause 11(b)(v) of the Agreement which deals with averaging weekly hours of work;
· For the purposes of the entitlement to an additional week of annual leave for shiftworkers, it would adopt the definition at clause 21.2 of the Award in lieu of the definition contained in clause 5 of the Agreement;
· The term ‘split shift’ has the same meaning as the term ‘broken shift’, which is defined at clause 5 of the Agreement;
· In relation to clause 27 of the Agreement:
a.where employees are required to undertake training on Saturdays for more than 10 hours per year, all hours beyond 10 will be paid at the rate of time and a half; and
b.where an employee’s employment ceases prior to completing 12 months’ service, the employer will provide a top-up payment to the employee upon the conclusion of their employment such that any training undertaken on Saturday is compensated at the rate of time and a half.
The Deputy President concluded her assessment of the BOOT by stating:
“On an overall assessment of whether employees to be covered would be better off overall under the Agreement, including with regard to the more beneficial and the less beneficial terms in the Agreement and the Undertakings, I am satisfied that the Agreement passes the ‘better off overall test’”.[3]
The Deputy President then turned to consider whether the Commission could be satisfied that the Agreement has been “genuinely agreed to” by the employees covered by the Agreement. The Deputy President noted that the Applicant declared that 325 employees were covered by the Agreement, of which 293 cast a valid vote and 215 employees voted to approve it. Of the cohort of employees assessed as eligible to vote, 286 were engaged on a casual basis. During the course of the proceedings, six employees were identified as ineligible to vote. This was not fatal to the question of approval because the Agreement was still approved by a valid majority.[4]
The Deputy President referred to a number of matters relevant to her consideration of the genuine agreement requirement including the steps taken by Busways Pacific to explain the terms of the Agreement to employees and the voting process. The Deputy President noted that an individual employee bargaining representative had raised a concern about the explanation of a new condition in the Agreement, which was the introduction of a 2.1-hour minimum engagement for casual employees, and how it may operate in practice. Previously, casual employees were subject to a one-hour minimum engagement period. The Deputy President observed that the written explanatory material demonstrates that this change was highlighted to employees and was self-explanatory on the face of the Agreement. Further, an Undertaking satisfactorily remedied any concern about defined terms as they related to this provision.[5]
The Deputy President concluded the Decision by stating that she was satisfied that all reasonable steps were taken to explain the terms and effect of the Agreement in compliance with s 180(5) and as required by s 188(1) and that she did not consider there to be any other reasonable grounds for considering that the Agreement was not “genuinely agreed” within the meaning of s 188.
The Deputy President determined that she was satisfied that each of the requirements of ss 186, 187, 188 and 190 as were relevant to the application for approval had been met, that the Agreement was approved and that it would operate from 21 April 2021, with a nominal expiry date of 31 December 2023.
The Appeal
Mr Paul has been employed by Busways Pacific as a bus driver since about 20 February 2023. The Agreement applies to Mr Paul’s employment with Busways Pacific. Mr Paul submits that the Deputy President erred in her finding on 14 April 2021 that the Agreement passed the BOOT because each award covered casual employee and each reasonably foreseeable casual employee is not better off under the Agreement compared to the Award because:
1. The minimum engagement period for a casual employee under clause 8(c)(i) of the Agreement is “2.1 hours (including over split shift)”, with no minimum period of work for each portion of work in the split shift. The Award provides at clause 11.4(a)(i) that a casual employee must receive a minimum payment of 3 hours for each shift. Correctly interpreted, the Award does not provide for the performance of a casual employee’s minimum shift in two separate portions of work. The higher ordinary rate of pay and the attendance allowance under the Award do not compensate for the loss of a 3-hour minimum payment under the Award. Accordingly, the class of casual employees rostered to perform split shifts where each portion of work is less than 3 hours is not better off overall under the Agreement compared to the Award.
2. In the alternative, if the Award permits the performance of a casual employee’s minimum shift over two portions of work, the class of employees corresponding to grade 4 or above in the Award, rostered to perform 2.1 hours of work per day (whether or not performed over split shifts) is not better off overall under the Award because:
a.for the minimum engagement, a grade 5 casual employee is better paid under the Award than a casual employee under the Agreement performing grade 5 duties;
b.for the minimum engagement, a grade 4 casual employee performing the minimum engagement under the Agreement earns $0.85409 or (0.95%) more for the minimum engagement than a grade 4 casual employee under the Award. However, this benefit is more than offset by the removal of the following allowances:
i.Reimbursement of travel expenses
ii.Vehicle allowance for travel between depots where own vehicle is used
iii.Uniform allowance
iv.Living away from home allowance
v.Medical examination allowance
Further, the class of employees who commence a shift within ordinary hours of work and complete the shift during a period for which the Award provides for penalty rates of pay, are worse off under the Agreement because clause 11(b)(i) of the Agreement provides “Payments shall be made for each shift at the rate applicable to the day on which the major portion of the work is performed”.
Mr Paul also submits that the Deputy President made errors of fact in her determination as a consequence of information provided by Busways in its Employer’s Declaration dated 21 December 2020 which were incomplete, inaccurate and/or misleading.
Mr Paul seeks an extension of time to file the appeal. Mr Paul submits that he was not an employee covered by the Agreement until February 2023 or a party to the proceedings and issues relating to the Agreement did not come to his attention until about September 2023. Mr Paul says he lodged his notice of appeal promptly after concluding that there were meritorious grounds of appeal after engaging in an intense period of self-education about workplace law, the terms of the Agreement, the terms of the Award, the Decision, and the material filed by Busways Pacific in the proceedings. Mr Paul is not aware of any prejudice to Busways Pacific and the other parties if an extension of time is granted.
Mr Paul submits that his grounds of appeal have good prospects of being upheld. If the Full Bench takes the view that the public interest supports granting permission to appeal, it is appropriate to extend the time for appeal to allow those issues to be dealt with.
Mr Paul also seeks to file the following additional evidence in the appeal:
1. Declaration of Andrew John Paul dated 9 April 2024
2. Supplementary statement of Andrew John Paul with attached contract and position description dated 12 April 2024
3. Statement of Calinda Morgan, undated
4. Declaration of Gary Fry dated 7 April 2024
5. Declaration of Elizabeth Kartzoff dated 7 April 2024
6. Declaration of David John Arnold dated 3 April 2024
7. Declaration of Terence John Merchant dated 4 April 2024
8. Declaration of Terence John Merchant dated 3 April 2024
9. Declaration of Gregg Wood dated 4 April 2024
10. Declaration of Vanessa Scott dated 5 April 2024
11. Declaration of Julie-Anne Handley dated 5 April 2024
12. Declaration of Ian Moule dated 5 April 2024
13. Declaration of Robert Gale dated 8 April 2024
14. Declaration of Paul McGovern dated 8 April 2024
15. Declaration of Duncan Upsall dated 4 April 2024
16. Declaration of John Muss dated 4 April 2024
17. Declaration of Peter Luke McGregor-Allen dated 8 April 2024
Busways Pacific disputes Mr Paul’s contention that the Agreement does not pass the BOOT and denies that it provided information in the Employer’s Declaration which was incomplete, inaccurate and/or misleading.
Busways Pacific opposes an extension of time being granted to file the appeal. Busways Pacific submits that there are limited reasons to explain why it took Mr Paul more than 12 months to file the appeal once he became employed by Busways Pacific on 20 February 2023, having regard to Mr Paul’s concerns about the Agreement developing in September 2023, Mr Paul’s appointment as a bargaining representative in October 2023, and his receipt of information from the Commission in December 2023 and from the Fair Work Ombudsman in February 2024.
Busways Pacific submits that it will experience prejudice as a result of the delay as Busways Pacific has been operating under the Agreement for three years, including paying wages in exchange for the terms negotiated. The effect of granting the appeal will be to quash the Agreement approval decision, with the result that the Agreement never commenced operation. This will affect the terms and conditions upon which employees have been engaged, requiring a possible recalculation of entitlements.
Busways Pacific does not oppose Mr Paul being granted leave to file new evidence (although it objected to parts of the evidence filed as inadmissible). Busways Pacific filed its own evidence, which it seeks leave to rely upon as follows:
1. First Statement of Robert Gibson dated 10 May 2024
2. Supplementary Statement of Robert Gibson dated 29 May 2024
3. Statement of Mark Lawrence dated 7 May 2024
New Evidence
Section 607(2) of the FW Act permits the Commission to admit further evidence and take into account any other information or evidence in an appeal brought pursuant to s 604(1).
Previous decisions of the Commission[6] have referred to the principles governing the discretion to admit new evidence or to consider further material which are set down in Akins v National Australia Bank.[7] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are firstly that it must be shown that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance, secondly it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance and thirdly the evidence must be credible.[8]
It has been recognised by the Commission that, in considering whether to exercise the discretion in s 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and that the principles need not be strictly applied.[9] However it will be rare for fresh evidence to admitted on appeal where the conditions in Akins are not met.[10]
The evidence relied upon by Mr Paul relates to the reasons why the appeal was filed out of time and matters related to shift length, allowances and classification. The evidence relied upon by Busways Pacific is in response to Mr Paul’s evidence. Busways Pacific has objected to aspects of Mr Paul’s evidence on the grounds of hearsay, relevance and that it is not direct evidence of the witness’ observations. We consider that it is appropriate in the circumstances of this case to exercise our discretion to admit all of the new evidence and will have regard to the objections raised by Busway Pacific in giving each aspect of the new evidence the appropriate weight.
Extension of time
Rule 128 of the Fair Work Commission Rules provides that in relation to an appeal under s 604 of the FW Act, the notice of appeal must be lodged:
(a) within 21 days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order—within 21 days after the date of the order; or
(c) within such further time allowed by the FWC on application by the appellant.
The Full Bench decision in Jobs Australia v Mrs Donna Eland[11] identified the following matters as relevant to the exercise of the Commission’s discretion to allow further time for a notice of appeal to be lodged:
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.[12]
In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour the grant of an extension of the time within which to lodge the appeal.[13]
To consider the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time is extended, it is necessary for us to consider the approach that we are required to take in relation to the grounds of appeal. The grounds of appeal relied upon by Mr Paul are, in effect, that the Deputy President erred in applying the BOOT, firstly because she failed to have regard to the correct interpretation of the minimum engagement provisions of the Award, and secondly because she made errors of fact in her determination as a consequence of Busways Pacific providing information in its Employer’s Declaration which was incomplete, inaccurate and/or misleading.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. As the Agreement was approved on 14 April 2021, prior to the commencement of these changes, we refer to the provisions of the Act which applied at the relevant time.
Where an application for approval of an enterprise agreement is made under s 185 of the Act, s 186(1) requires that the Commission approve the agreement if the requirements set out in ss 186 and 187 are met. Section 186(2)(d) requires the Commission to be satisfied that the agreement passes the better off overall test.
The BOOT which is the subject of the approval requirement in s 186(2)(d) is explained in s 193(1) as follows:
“An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”
In relation to s 186, the Full Bench in United Workers’ Union v Hot Wok Food Makers Pty Ltd[14] observed:
“Whether the above approval requirements are met depends upon the satisfaction of the member of the Commission who hears and determines the application for approval of the relevant agreement. On appeal therefore, it is not sufficient that a Full Bench would form a different view as to the relevant approval requirement for an appeal to succeed. Rather, because the requirement for the member’s satisfaction as to the approval criteria indicates that the statute allows a degree of latitude as to the choice of the decision to be made, the House v The King standard of appellate review applies on appeal. This means in this case that the UWU must demonstrate, in order for its appeal to succeed, that the Deputy President acted upon a wrong principle, mistook the facts, took into account an irrelevant consideration or failed to take into account a material consideration, or made a decision which is plainly unreasonable or unjust.”[15]
In the matter before us, it is relevant to consider whether the Deputy President acted upon a wrong principle with respect to the minimum engagement period in the Award, or whether she mistook the facts with respect to classifications and allowances.
Having regard to the BOOT and the approach we are required to take to the appeal, we will determine the following matters in this decision in considering the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if the time is extended:
1.Does the Award permit the 3-hour minimum engagement to be performed as split shifts?
2.Were the classifications matched correctly?
3.What are the conditions of employment relevant to the BOOT?
We first set out the relevant factual background.
Factual Background
Busways Pacific
Busways Group Pty Ltd (Busways Group) currently operates bus service contracts in New South Wales for Transport for NSW in Western Sydney, North Shore and West, Central Coast and North Coast and for the South Australian Public Transport Authority in Adelaide’s Outer South. Busways Group operates these services through a variety of related companies that fall within the broader Busways Group. Busways Group has approximately 2,800 employees.[16]
Busways Pacific delivers passenger transport services under a contract with Transport for NSW for the regional North Coast area of NSW (classified as a rural and regional contract) (the Contract). Busway Pacific was previously known as Busways North Coast Pty Limited. The area which the Contract covers spans from Heatherbrae in the south to Yamba in the north. The Contract has been held by Busway Pacific since approximately 2004.[17]
It is a requirement of the Contract that all buses in the region be available to transport members of the public as well as school children on all their routes. Consequently, even if a bus might predominately be carrying school children, the bus driver must stop at bus stops where members of the general public might be waiting and must transport those members of the public on the bus’s normal school service.[18]
Since Busway Pacific has held the Contract, a series of enterprise agreements have applied to the employees. These include the following:
(a) Busways North Coast Fair Work Agreement 2010
Agreement ID - AE890610
(b) Busways North Coast Fair Work Agreement 2012
Agreement ID - AE404031
(c) Busways North Coast Fair Work Agreement 2017
Agreement ID - AE424438
(d) Busways Pacific Fair Work Agreement 2020
Agreement ID - AE511081[19]
The Notice of Employee Representational Rights in relation to the Agreement was issued on 7 February 2020. The Agreement was approved by employees on 11 December 2020.
Approval of the Agreement by the Commission
On 21 December 2020, an application to approve the Agreement was made by Busways Pacific. The application was referred to Deputy President Mansini.
On 8 February 2021, the Chambers of Deputy President Mansini sent Busways Pacific and the bargaining representatives an email requesting further information including in relation to the following:[20]
“Further information to satisfy the Commission that the employees to be covered by the agreement are better off overall including calculations and methodology and particularly having regard to the following conditions/entitlements in the Proposed Agreement when compared to the relevant reference instruments:
a.Further explanation of the coverage of the Proposed Agreement noting the coverage clause is broad, a number of provisions appear directed at school bus drivers only but there is also a provision for railway work (substitution of bus services). Your response should elaborate on (and if necessary explain any differences in) statements made in the F16 and F17 declaration.
b.Noting the definition of “shiftworker” in the Proposed Agreement, it would appear that the entitlement to an extra week of annual leave arises in different (and narrower or fewer) circumstances than it would under the relevant award.
c.Clarification is sought that the rates of pay at Schedule 1 of the Proposed Agreement are intended to apply as at the “test time” for the purposes of the Commission’s better off overall assessment (s.193 of the Act).
d.It appears possible that ordinary hours are averaged under cl.11(b)(v) of the Proposed Agreement over a longer period than permitted under the Award which may be detrimental to employees covered by the Proposed Agreement.
e.Employees who complete training on a Saturday do not appear to be entitled to the Saturday rate of pay that would apply under the Award.
f.Further explanation is sought as to the minimum engagement of casuals under cl.8(c)(i) and how this is said to be more beneficial than the minimum engagement provisions that would otherwise apply under the Award.
g.Further explanation as to entitlements of part time employees who are not engaged outside of school terms and how this is said to be more beneficial than that of a part time employee under the Award.
h.Full time employees who are not employed over the school holiday period may not be better off overall.”
On 16 February 2021, Mr Kyle Scott, Director, Australian Business Lawyers & Advisors, provided a response to the Deputy President’s Chambers which relevantly provided in relation to the “better off overall” test:
“The Applicant firmly believes that the Agreement results in all employees to be covered by the agreement being better off overall, as compared to the Award applying to their employment. The principal over-Award entitlement is the beneficial rates of pay, which sees employees receiving rates that are between 18.85% and 33.18% above the applicable modern award rates of pay. In addition to those over-Award rates, employees also receive additional monetary allowances that are not otherwise provided for by the Award, as well as more beneficial entitlements to redundancy pay, annual leave loading, overtime and minimum engagements.
Having regard to the relatively few less beneficial terms in the Agreement and the modest nature of those terms, our client submits that the Commission should be satisfied that the Agreement passes the BOOT. In respect of the specific matters raised in your email, we respond as follows:
a.The Agreement covers employees employed by the employer as Bus Drivers. The work undertaken by those employees involves driving buses which may be part of school bus services, route services (i.e. not dedicated school bus services), and/or occasional ‘railway work’. The term ‘railway work’ refers to the task of driving a bus that is scheduled to run in substitution of train services where trains are not operating (usually due to trackwork) and transporting passengers that would otherwise be travelling by train. We trust this clarifies the nature of railway work, but please let us know if there is a particular issue that you require further explanation of.
b.We accept that the definition of a shiftworker for the purposes of the additional week of annual leave in the Agreement is narrower than that in the Award. We are content to provide an Undertaking to resolve that issue. In any event, we are instructed that the employer does not engage workers to work patterns as described by clause 21.2 of the Award.
c.We can confirm that the rates of pay at Schedule 1 of the Proposed Agreement are intended to apply as at the “test time”.
d.To alleviate any concern, we are instructed that our client will provide an Undertaking to the effect that clause 11(b)(v) of the Agreement is of no effect and will not be utilised by the employer.
e.Clause 27 of the Agreement provides for any training undertaken on a Saturday to be paid at single time rates (which are materially in excess of the Award rates). Our client accepts that this is a less beneficial term as compared to the Award, however notes that most training is undertaken during the week (Monday-Friday), and it is not common for employees to be required to undertake training on Saturdays. We are instructed that employees might typically be required to undertake training on a Saturday not more than about two days per year, and not for more than 5 hours on those days. On balance, this term should be viewed in context, and having regard to the numerous significantly more beneficial terms in the Agreement, we consider that this clause does not have any material impact on the BOOT assessment (that is, the Agreement comfortably passes the BOOT).
f.We note the minimum engagement period is 2.1 hours for casual employees on weekdays. While this is less than the 3 hour minimum engagement period prescribed by the Award, when one has regard to the significantly over-award rates of pay contained in the Agreement, the terms are broadly equivalent. In other words, where a casual employee works a 2.1 hour minimum shift under the Agreement, the amount paid to the employee in that scenario would broadly equate to the amount that would be payable under the Award in respect of a 3 hour minimum. To supplement this, we note that casual employees would further be better off under the Agreement on weekends as the casual minimum engagement period on Saturdays and Sundays is in excess of the 3 hours stipulated within the Award.
g.The part-time arrangements contained in the Agreement are longstanding provisions which have been agreed between the parties and have been in place for many years (as enshrined in predecessor enterprise agreements). The part-time provisions in the Agreement, and particularly clause 10(a)(vi), permit employees who work regular days and hours during school term (but less than a full-time load) to obtain the many benefits that are associated with permanent employment including job security, annual leave, personal/carer’s leave, compassionate leave, entitlements to notice and redundancy pay, etc. Without the inclusion of clause 10(a)(vi) in the Agreement, it would not be sustainable for the employer to offer these employees ongoing part-time employment.
h.We are instructed that all full-time employees continue to be employed, and are provided with work, over the school holiday period.”[21]
On 10 and 19 February 2021, two individual employee bargaining representatives sent emails to the Deputy President’s Chambers in similar terms. In relation to minimum engagement for casual employees, the emails provided:
“We believe as a Depot our casual employees will be disadvantaged by Clause 8 (c)(1) 2.1 hour minimum and the lack of explanation for the term “Minimum Engagement”.
During the EA process, the term ‘Minimum Engagement’ was sold to us as an entire days work. Not per shift. To explain, we have casual drivers who drive a shift of less than one hour and are currently paid for the one hour minimum shift.
Under the proposed EA, we were told that to receive the 2.1 hour minimum for the day, that driver would have to work the extra time to be paid. If that driver did not work the remainder of time to make up to 2.1 hours, they would only be paid for time worked. Less than one hour. In our Depot, to make up the time would mean undertaking other non-driver related tasks.
We do not have a definition of ‘Split shift’.
The number of casual employees that are affected by this change is [redacted] and therefore are not fully represented in the voting process.”[22]
On 5 March 2021, the Deputy President listed the matter for Mention by telephone, then issued the following directions (which were subsequently varied on 11 March 2021 and again on 15 March 2021):
“[1] By 4pm on Tuesday 9 March 2021, any individual employee bargaining representative wishing to address the Commission about whether the Proposed Agreement should be approved, must do so in as much detail as possible, by email to [redacted]. Your name and work site will be kept strictly confidential, but the detail of your views will otherwise be provided to the employer and the union so that they can respond.
[2] By 4pm on Friday 12 March 2021, the employer must provide to the Commission:
• Evidence that casual employees who were given the opportunity to vote were engaged to work during the access period and/or the time of the vote (eg. payslips, rosters, contracts of employment);
• Copies of the written instruments appointing the individual employee bargaining representatives that were provided to the employer; and
• Any submissions and/or evidence it wishes to provide in response to any matters raised by the individual employee bargaining representative(s).
[3] By 4pm on Friday 12 March 2021, the union is invited to share its views (if any) in relation to any matters raised by other employee bargaining representatives.
[4] Parties are at liberty to apply to Deputy President Mansini to vary the above directions if they require more time to respond.”[23]
On 16 March 2021, Mr Scott sent an email to the Deputy President’s Chambers in accordance with the directions issued by the Deputy President. The email addressed the three matters referred to in the directions including a matter raised by a bargaining representative about minimum engagement. In this regard, the email provided:
“Minimum engagement clause
We note that we addressed that issue in our email of 16 February 2021 in terms of how the 2.1 hour minimum engagement under the Agreement compared in a financial sense to the 3 hour minimum engagement under the Award. Clause 8(c)(i) of the Agreement provides for a minimum engagement of 2.1 hours, meaning that an employee has a guarantee of at least 2.1 hours’ payment if working shifts of that duration or less. While the Agreement does not contain a definition of ‘split shift’, it does contain a definition of ‘broken shift’ (see clause 5) which is identical to the definition as contained in the Award. The terms ‘split shift’ and ‘broken shift’ are synonymous and used interchangeably in the Agreement. We also note that the 2.1 hour minimum engagement is a significant improvement compared to the 1 hour minimum engagement contained in the predecessor Agreement (which is currently in operation).”[24]
On 30 March 2021, the Chambers of Deputy President Mansini sent Busways Pacific and the bargaining representatives an email in the following terms:
“Dear All,
The following contains important information about the application for approval of the Busways Pacific Fair Work Agreement 2020 (Proposed Agreement) which is with Deputy President Mansini for consideration.
The Deputy President has had the opportunity to consider the materials filed in this matter to date. The following concerns remain:
1.The “better off overall test”
The Applicant has acknowledged that the Proposed Agreement contains some provisions which are less beneficial than if the relevant Award applied. It has been submitted that some of those matters will arise in limited circumstances. But those submissions do not form part of the Proposed Agreement.
In the absence of a binding commitment, the Deputy President remains concerned about the potential for the Proposed Agreement to operate in practice such that a class of employees or prospective employees would not be “better off overall” under the Proposed Agreement (and in a manner that is not offset by other, more beneficial conditions).
Accordingly, the Applicant is invited to propose an amended undertaking which includes those matters in the original undertaking dated 15 February 2021 and which also provides a commitment consistent with the intended operation that the Applicant has submitted, in relation to the following provisions:
a.The definition of “broken shift” at clause 5, which the Applicant submitted is intended to be used interchangeably with “split shift”. The submission is understood to be that the intention is that the same definition is to apply to the term “split shift” where it appears in the Proposed Agreement.
b.The minimum engagement for casual employees, which the Applicant is understood to have submitted is not intended to fall lower than the requisite Award rate when the higher rates of pay are taken into account (noting weekend work is not a guaranteed benefit and may not be available to offset a casual employee’s minimum engagement on other days).
c.The requirement to complete training on Saturdays, which the Applicant submitted is not common because training is usually performed on a Monday to Friday and typically not for more than 5 hours on each of about 2 Saturdays per year.
d.The rates of pay, which the Applicant submitted are intended to apply as at the “test time”.
2.Explanation of the terms and effect of the Proposed Agreement
The Commission understands that the explanation of the terms and effect of the Proposed Agreement included:
·a marked up version of the Proposed Agreement, which highlighted the new provisions;
·a comparison document titled “changes between 2017 and 2020 EA”, which compared the terms of the current agreement to the Proposed Agreement by highlighting the changes;
·a summary document titled “information about the 2020 Busways Agreement”, which listed each provision of the Proposed Agreement with a short statement in relation to each;
·information sessions held at depots, for which there are no scripts or notes before the Commission.
There is no information before the Commission to suggest that the differences between the Proposed Agreement and the relevant Award provisions were explained to employees. It is acknowledged that an explanation of the terms and effect of the Proposed Agreement, by reference to the applicable terms and conditions of employment (and not necessarily the award), may be sufficient to comply with the obligation at s.180(5). But it will depend on the particular circumstances of each case.
In this case, the employee bargaining representatives have indicated that they did not understand or have explained to them the following provisions of the Proposed Agreement:
a.the minimum shift engagement for casual employees;
b.the meaning of “split shift”;
c.training on Saturdays.
The Deputy President is of the view that the content of the materials in support of the Applicant’s explanation do not address the above matters in sufficient detail to constitute all reasonable steps to ensure that employees could reasonably have understood what they were being asked to approve. The direct responses received by some employees and bargaining representatives of other employees, demonstrate that they did not understand the way these provisions operate, or the way the Applicant says they are intended to operate. An assumed understanding of existing terms and conditions and use of “plain language” to simplify communications should not replace a thorough explanation of the terms and conditions that employees are being asked to approve and that will apply to their employment.
These issues may be effectively “cured” by any undertakings the Applicant may propose (per item 1 above). The Commission will await any further proposed undertakings the Applicant wishes to make before making a final determination about compliance in this respect.
You may also wish to address the Commission about whether any strict non-compliance with the statutory pre-approval steps may be waived in accordance with s.188(2) and the decision in Huntsman Chemical Company Australia Pty Ltd t/a RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Huntsman).
3.No other reasonable grounds for believing the Proposed Agreement is not genuinely agreed
In relation to the obligation at s.188(1)(c), the Commission would be assisted by further information about the number of bargaining meetings that were conducted, and who attended those meetings, before the relevant employees were requested to vote on the Proposed Agreement.
What do you need to do now?
One further and final opportunity to respond will be afforded to the parties.
The Commission directs that responses to the above be filed and served as follow [sic]:
i)By 12pm on Tuesday 7 April 2021, the Applicant is to file its response including any submissions, a single document with all proposed undertakings (signed and in accordance with the Regulations) and any further information on which it relies.
ii)By 4pm on Wednesday 8 April 2021, the Bargaining Representatives are to file any reply, particularly with any views as to any further proposed undertakings.
The Commission will then proceed to determine the matter on the basis of the materials before it at that time.
Yours faithfully,
[name redacted]
Associate to Deputy President Mansini”[25]
On 6 April 2021, Mr Scott sent a response to the Deputy President’s Chambers. In relation to the “better off overall test”, the email relevantly provided:
“1. The “better off overall test”
We note that the Commission has raised four issues in respect of which the Commission remains concerned about the potential for the Agreement to operate in practice such that certain employees or prospective employees might not be better off overall. In that regard, the Commission has sought undertakings that would have the effect of providing a binding commitment consistent with the intended operation of the Agreement.
We address each of the four stated concerns as follows (adopting your numbering):
a. Definition of split shift:
The Applicant is happy to provide an undertaking to confirm that the term “split shift” has the same meaning as the term “broken shift” (which is defined in clause 5 of the Agreement, and which replicates the definition contained in the Award).
b. Minimum engagement for casuals:
The Agreement contains a 2.1 hour minimum engagement for casual employees when working Monday-Friday, compared to a 3 hour minimum engagement under the Award. However, the remuneration payable to casual employees under the Agreement, in respect of minimum engagements, does not fall lower than the requisite amount payable under the Award once the attendance allowance is factored in (which is payable to all employees covered by the Agreement for each day worked).
Set out below is a comparative analysis of the amounts payable in respect of minimum engagements under both the Agreement and the Award.
Entitlements under the
AgreementEntitlements under the
AwardHourly rate (inclusive of casual loading) $35.4999 $29.975 Rate payable for minimum engagement $35.4999 x 2.1 =
$74.54979$29.975 x 3 =
$89.925Attendance Allowance (paid per day) $16.2443 N/A Total amount payable (per minimum engagement) $90.79409 $89.925 The above table is based on rates for a Grade 4 employee under the Passenger Vehicle Transportation Award 2020 (the Award), noting that the employees covered by the Agreement perform work which would correspond with Grades 1-4 of the Award.
The enhanced casual weekend minimum engagements under the Agreement (which are a more beneficial term) do not need to be relied on to offset a casual employee’s minimum engagement on other days, as the weekday minimum engagement term of itself results in employees being better off in monetary terms as compared to the Award entitlements (as the table above demonstrates).
Given the above, the Applicant does not consider that an undertaking is necessary. However, if the Applicant has misunderstood the Commission’s concern on this issue, we would be grateful for an opportunity to rectify any misunderstanding.
c. Training on Saturdays:
The Applicant is happy to provide an undertaking to the effect that:
·where employees are required to undertake training on Saturdays for more than 10 hours per year, all hours beyond 10 will be paid at the rate of time and a half; and
·where an employee’s employment ceases prior to completing 12 months’ service, the employer will provide a top-up payment to the employee upon the conclusion of their employment such that any training undertaken on Saturday is compensated at the rate of time and a half.
This undertaking will have the effect of capping the number of hours of training that employees would be required to undertake on Saturday at single time, and also ensuring that the single time entitlement will only apply to employees whose service with the employer exceeds 12 months.
It is submitted that this undertaking should resolve any concern held by the Commission that the term could apply in a manner that would result in any employee not being better off overall.
d. Operation of the rates of pay:
It appears that we misunderstood the query regarding the rates of pay as at the test time when we responded to this query on 16 February 2021. The rates of pay in the Agreement are expressed to apply (and are intended to apply) from the commencement of the Agreement, which we understand will be 7 days following the approval of the Agreement. It is not the intention for the rates of pay in the Agreement to retrospectively apply from the date the Agreement was made or the date the application for approval was lodged with the Commission. We apologise if our previous response inadvertently gave that impression.
For the purposes of section 193(1) of the Act, it is not necessary for the rates contained in the Agreement to be expressed to apply from the date the Agreement is lodged with the Commission for approval. Rather, section 193(1) requires the Commission to be satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
That assessment requires a comparison between:
·the rates that would apply to the employee if the Agreement was in operation as at the test time; and
·the applicable award rates as at the test time.
In this case, the Agreement rates are clearly more favourable compared to the Award rates that applied as at the test time (being 23 December 2020), as demonstrated by the following analysis:
Award hourly rate (incl casual loading) Agreement hourly rate (incl (incl casual loading) Difference Grade 1 $26.75 $35,4999 +32.71% Grade 2 $27.40 +29.56% Grade 3 $28.96 +22.58% Grade 4 $29.98 +18.41% It should also be noted that the above analysis does not factor in the daily attendance allowance of $16.2443 that is payable to employees under the Agreement, which further enhances the beneficial nature of the Agreement.
Please find attached a consolidated form of Undertaking which addresses the issues referred to in (a) and (c) above, as well as incorporating the previous undertakings that had previously been provided.
We trust the Undertakings, as well as the responses above, adequately address the concerns relating to section 193(1) of the Act.”
The Decision was subsequently issued on 14 April 2021.
Mr Paul’s employment
Mr Paul has been employed by Busways Pacific as a casual bus driver pursuant to the Agreement since February 2023.[26]
Mr Paul’s normal employment involves driving bus routes based at the Raleigh depot taking school children to school in his morning shift and taking school children back home from school in his afternoon shift. As part of that school route work, on rare occasions he also picks up paying passengers who wish to travel on that route.[27]
Mr Paul’s usual shift pattern in the time he has been at Busways Pacific is a morning shift of 1 to 2 hours and an afternoon shift of 1 to 2 hours on each school day.[28]
Drivers that do school bus runs go home or elsewhere for the 4-5 hour period in between periods of work. Shifts in relation to public bus routes can run for a whole day. Some of these all day shifts have just a lunch break and a couple of crib breaks, while others have breaks as long as 3 hours in between.[29]
At Raleigh depot most employees are engaged as casual bus drivers, not casual school bus drivers. Most of the work the employees do is driving school bus runs in school terms. Mr Paul and most of the other drivers drive buses that do not have a ticketing machine.[30]
Mr Paul and other drivers carry a cash box onto the bus which has at minimum a $10 float and a book of tickets called “flimsies”. If a paying passenger wants to board the bus, the drivers must accept them. If the passenger only has a credit card or a $20 note, the drivers let them on for free. It is rare to have a paying passenger so many drivers do not carry their cash boxes onto the bus however the cash box sets them apart from school bus drivers who are “solely” engaged for the transportation of school children.[31]
On 14 September 2023, Mr Paul and other drivers at Raleigh depot raised a dispute with Busways Pacific about the costs of travel for short shifts. The letter outlining the dispute refers to the length of shift times being reduced under the “current changes at Raleigh depot”. The letter also refers to shift 107 being 1 hour 4 minutes and that “Two shifts that do go together since the changes were made are Shift 108 1hr 28m and Shift 311 1hr 29m which comes to 14hrs 45 mins per week.”
At this time, arising from his concerns about the costs of travel for short shifts, Mr Paul looked more closely at the Agreement and the entitlements of employees covered by the Award.[32]
Mr Paul identified seven issues where he believed employees were receiving less under the Agreement compared to the Award. Researching these issues took considerable time and effort and involved making five phone calls to the Fair Work Ombudsman (FWO), approximately 10 phone calls to the Commission and sending 13 emails to the Awards section of the Commission and 20 emails to the client services section of the Commission. In early December 2023, one of Mr Paul’s emails to the Commission resulted in Mr Paul receiving the Commission’s file in relation to the approval of the Agreement which resulted in Mr Paul requesting the files for the previous two agreements made between Busways Pacific and its employees.[33]
On 11 December 2023, Mr Paul requested that the FWO provide the correct interpretation for a minimum engagement for a casual non school bus driver under the Award. The FWO responded on 12 February 2024 in some detail and expressed the opinion that it was not without doubt. This provided Mr Paul with the impetus to press ahead with the appeal. He
lodged the notice of appeal 22 days later on 5 March 2023.[34]
Mr Paul estimates that since September 2023 he has dedicated at least 400 hours, based on an average of about 20 hours per week for over 20 weeks, to learning about workplace law. He has no background in how Agreements are made nor has he previously read the FW Act, Fair Work Regulations, or Fair Work Commission Rules. Mr Paul has not previously had any interaction or correspondence with the Commission or the FWO.[35]
In late October 2023, Mr Paul nominated himself and was nominated by other drivers at Raleigh depot as a bargaining representative for negotiations for a new enterprise agreement with Busways Pacific, which commenced on about 10 November 2023. These negotiations are ongoing.[36]
Matters to be Determined
Does the Award permit the 3-hour minimum engagement to be performed as split shifts?
Mr Paul submitted that the Award does not provide for the performance of a casual employee’s minimum three-hour shift in two separate portions of work. The definition of “broken shift” in the Award is directed to drivers who perform long shifts of driving and are required under transport laws addressing the dangers of driver fatigue to have minimum rest periods. The only other reference to “broken shift” in the Award is in cl 13.2, which deals with the notice requirements for rostering. Mr Paul submitted that there is no support in the text of the Award for a construction of “shift” in cl 11.4 as including “broken shift”.
Busways Pacific submitted that under the Award the broken shift provisions can apply to casual employees and that the three-hour minimum shift requirement can include a broken shift.
Consideration
As part of our consideration of this matter, we set out the history of clause 11.3 of the Award. The process of making Modern Awards under the FW Act began in 2008. On 22 May 2009 the Full Bench of the Australian Industrial Relations Commission (AIRC) published an exposure draft for the Award. In its statement issued in conjunction with the draft the Full Bench said:
“The exposure draft contains minimum engagement provisions for full-time, part-time and casual workers. We invite submissions as to whether a minimum engagement provision is necessary for a full-time employee. In the case of part-time and casual employees we have included a three hour minimum engagement. We are aware that the transport of school children gives rise to special considerations about minimum hours particularly in more remote areas. We leave it to the parties to make any further submission about this matter if they see fit.”[37]
When making the Award on 4 September 2009, the Full Bench noted:
“Several amendments were sought by parties with an interest in this award. We have considered the submissions in support of each amendment and the comparable provisions in the relevant pre-reform awards and NAPSAs…We have amended the part-time provisions in cl.10.4 to accommodate, in part, the submissions of the Bus Industry Confederation. In the case of casual employees we have retained a three hour minimum for each shift but where the transportation of school children is undertaken then we have provided for a two hour minimum for each engagement.”[38]
Based on the decision of the Full Bench the Award contained the following minimum engagement period for casual employees at clause 10.5(d):
“A casual employee is to be paid a minimum payment of three hours pay for each shift. A casual employee solely engaged for the purpose of transportation of school children to and from school is to be paid a minimum payment of two hours for each engagement.”
The issue of minimum engagement periods in the Award was next considered by the Commission during the Review of all modern awards (other than modern enterprise and State PS awards) after the first two years under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the initial review). The purpose of the initial review was to consider whether modern awards were achieving the modern awards objective and were operating effectively, without anomalies or technical problems arising from the award modernisation process.
During the initial review, the Australian Public Transport Industrial Association (APTIA) and the Transport Workers Union (TWU) sought variations in relation to the minimum payment due to casual bus drivers who are engaged solely for the transportation of school children to and from school. APTIA claimed that the wording of the clause caused confusion with some employers paying a minimum of two hours per day while others paid a minimum of two hours in the morning and another minimum of two hours in the afternoon. The effect of the variation sought by APTIA was to set a minimum payment of two hours on each day that a casual employee is engaged where that engagement is solely for the purposes of transporting school children to and from school. The TWU did not support the variation proposed by APTIA and submitted that there was no confusion about the wording in the Award. The TWU said that if there is an anomaly then it was best rectified by amending the Award to clarify that, although the work on one day might be considered a single shift, employees engaged solely in the transportation of school children would be considered to be on two engagements on such a day.
In determining the matter, Commissioner Bissett noted that there did not appear to be any agreement that the amendment sought by APTIA reflected the intent of Clause 10.5(d) of the Award.[39]
In dismissing the applications, Commission Bissett said:
“Whilst different language is used in the PVT Award to describe the basis of the minimum payment due to full-time employees (per ‘shift/day engaged’); part time employees (‘for each day engaged’); casual employees (‘for each shift’); and casual employees engaged solely for the purpose of the transportation of school children to and from school (‘each engagement’) this does not, of itself, create an anomaly. It may actually support the view that it was intended that casual employees engaged solely in the transportation of school children to and from school should be treated differently to other employees - whether casual, part-time or full-time. (footnotes omitted).”[40]
The issue of minimum engagement periods in the Award was next considered by the Commission during the 4 Yearly Review of Modern Awards - Casual Employment and Part-Time Employment Decision.[41] Under s 156 of the FW Act (which has since been repealed), the Commission was required to review all modern awards every four years, starting as soon as practicable after 1 January 2014. The Commission determined that the first 4 yearly review of modern awards (the Review) would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage.[42] “Common issues” were likely to be proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards.[43] The Commission identified a number of common issues to be dealt with as part of the Review including part time employment and casual employment.[44] Matters identified as common issues were referred to a specific Full Bench for determination in a “stand-alone” proceeding rather than being dealt with in the context of each individual modern award. Claims in relation to minimum engagement periods for part time and casual employees were referred to the casual and part time employment Full Bench.[45]
In their decision about the common issues proceedings dealing with part-time and casual employment, the Full Bench observed that the issue of minimum engagements did not receive any systematic consideration during the award modernisation process which led to the establishment of the modern awards currently in operation under the FW Act, and largely preserved the predominant provisions concerning minimum engagements contained in pre-reform awards.[46]
The Full Bench cited the following passage from the Full Bench decision in Victorian Employers’ Chamber of Commerce and Industry[47] which dealt with an application by the Victorian Employers’ Chamber of Commerce and Industry (VECCI) to vary the Clerks - Private Sector Award 2010 to permit an employer and an employee to agree to reduce the three-hour minimum engagement period for part-time employees:
“[12] The Award Modernisation Full Bench of the Australian Industrial Relations Commission (AIRC) did not address the question of minimum engagements in any of its decisions and statements made in connection with the award modernisation process. This is because minimum engagements did not emerge as a significant issue during that process. Minimum periods of engagement have been a common feature of State and Federal awards for a very long period. The rationale for minimum periods of engagement is one of protecting employees from unfair prejudice or exploitation. Given the time and monetary cost typically involved in an employee getting to and from work, it has long been recognised that employees, especially casual employees, can be significantly prejudiced if a shift is truncated by the employer on short notice (as would otherwise be lawful in a typical casual engagement) or the employee can be pressured into accepting unviable short shifts in order to retain access to longer shifts. The inclusion of a minimum engagement period in a modern award invariably reflected the fact that such provisions were to be found in a sufficient proportion of the pre-reform awards and NAPSAs that are operated within the coverage of the modern award.”
The Full Bench noted that minimum engagement periods in awards have developed in an ad hoc fashion rather than having any clear founding in a set of general principles. However, their fundamental rationale has essentially been to ensure that the employee receives a sufficient amount of work, and income, for each attendance at the workplace to justify the expense and inconvenience associated with that attendance by way of transport time and cost, work clothing expenses, childcare and other expenses. An employment arrangement may become exploitative if the income provided for the employee’s labour is, because of very short engagement periods, rendered negligible by the time and cost required to attend the employment. Minimum engagement periods are also important in respect of the incentives for persons to enter the labour market to take advantage of casual and part-time employment opportunities.[48]
The Full Bench observed that modern awards contain a range of different minimum daily engagement periods for casual and part-time employees, and some contain no minimum at all. These provisions generally derive from provisions in pre-reform awards which were in most cases likely formulated by the agreement of the award parties. In particular modern awards, it is clear that that the minimum engagement periods were intended to meet the specific circumstances of special types of work or workers. For example, in clause 10.5(d) of the Bus Award, the minimum engagement period for casuals is three hours, but for school bus drivers it is two hours per engagement.[49]
The Full Bench concluded that it is necessary for modern awards to contain some form of minimum engagement period for casual employees in order to avoid their exploitation in order to meet the modern awards objective. They reached the provisional view that awards which have no minimum engagement period for casual employees should be varied to include a two hour minimum engagement period for casuals and provided interested parties an opportunity to provide further submissions concerning this proposition.[50] Draft determinations for the modern awards in relation to which there was no challenge to the provisional view were published and interested parties were given an opportunity to make submissions in response.[51]
Three submissions were filed in response to the draft determinations including from the
Australian Council of Trade Unions (ACTU) who submitted that the variations to effect the minimum engagement period should provide that the two hour minimum period could not encompass two non-consecutive periods of work in a day akin to a “split shift” arrangement.[52]
The Full Bench accepted the ACTU submission and indicated that it was not their intention that the two hour minimum engagement encompass non-consecutive periods of work within a day.[53] They said that consecutive periods of work in a day, which might require multiple commutes to and from work or separate childcare placings, would likely require more than a minimum two hours’ pay to justify the time, expense and inconvenience involved.[54] The Full Bench indicated that the draft determinations would be varied to provide that the minimum engagement is two consecutive hours, so that where there is more than one engagement in a day, each engagement would have to consist of at least two hours’ work and pay. The awards were then varied to include the following clause with effect from 1 October 2018:
“A casual employee must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.”[55]
In their initial decision about the common issues proceedings dealing with part-time and casual employment the Full Bench also considered minimum engagement period claims in relation to specific modern awards including two claims by the APTIA and the TWU respectively to vary clause 10.5(d) of the Award. The APTIA claim sought to introduce a new provision in the Award which clarified the operation of the minimum engagement period obligation for casual school bus drivers, and enabled casual school bus drivers and their employer to agree to a minimum payment per engagement of less than the current two hours in certain circumstances. The TWU sought to insert a new provision in the Award to clarify that a casual employees engaged solely for the purpose of transportation of school children to and from school may be rostered to perform two separate engagements per day with each engagement being a minimum of two hours.[56]
The Full Bench noted that there was no disagreement that the two-hour minimum payment applied separately to each block of work carried out by a school bus driver in a single day, and was not intended to encompass all the work done by a school bus driver in a day. Therefore if the driver performed work in the morning driving children to school, the driver was entitled to a two hour minimum payment, and if the driver performed work in the afternoon driving children home from school, the driver was entitled to a separate two hour minimum payment. The Full Bench agreed that this was the correct approach.
The Full Bench rejected APTIA’s proposal for a facilitative provision to allow for shorter minimum payments for school bus drivers for a number of reasons including that the minimum payment provision already provides for a very short minimum engagement, and any further reduction would likely render the provision a nullity and allow for exploitative employment arrangement to arise.[57]
The Full Bench expressed a provisional view that the TWU draft should be adopted in modified form as follows:
“A casual employee solely engaged for the purpose of transportation of school children to and from school may be rostered to perform one engagement or two separate engagements per day, with a minimum payment of two hours for each separate engagement”[58].
After providing APTIA and the TWU with the opportunity to make submissions in relation to this proposal, the Full Bench varied the Award accordingly with effect from 1 January 2018. Since that time, the clause which provides for casual minimum engagements in the Award was renumbered 11.4 and is currently numbered 11.3.
Clause 11.3 of the Award provides:
“11.3 Minimum engagement for a casual employee
(a) A casual employee must receive:
(i) a minimum payment of 3 hours for each shift; or
(ii) where solely engaged for the purpose of transportation of school children to and from school, a casual employee may be rostered to perform one engagement or 2 separate engagements per day, with a minimum payment of 2 hours for each separate engagement.”
It is common ground between the parties that employees are engaged to drive buses for the purposes of transporting school children as well as members of the public. Consequently, if the Agreement did not apply to the employees, clause 11.3(a)(i) of the Award would apply but not 11.3(a)(ii).
Clause 2 of the Award defines “broken shift” as:
“a shift with a spread of hours permitted under the relevant State or Territory driving hours legislation and with an unpaid break of greater than 60 minutes between the 2 portions of work.”
Broken shifts are referred to in 13.2(a) of the Award which provides:
“All known rostered duty, which may include broken shifts and days off, must be displayed at least 7 days before the start of the rostered duty.”
In our view it is clear that the intention of the Full Bench dealing with casual and part time employment during the Review was to ensure that all Awards provide for a two-hour minimum engagement period and that this minimum engagement period was not to encompass two non-consecutive periods of work within a day. Consequently, the Full Bench varied all modern awards which did not have minimum engagement periods to provide a minimum engagement period of two hours on each occasion an employee was required to attend work. In relation to the Award, the Full Bench only considered the applications before it brought by the TWU and APTIA. These applications dealt with the aspect of clause 10.5(d) (now clause 11.3(a)) which applies only to drivers solely engaged for the purpose of transportation of school children to and from school children (school bus drivers). The minimum payment of 3 hours for each shift which applies to drivers (other than school bus drivers) was not considered by the Full Bench. There was no application made to vary the Award to make provision for drivers (other than school bus drivers) to paid for at least 3 consecutive hours of work on each occasion they are required to attend work.
We accept that there appears to be an inconsistency in the Award between employers being able to roster drivers (other than school bus drivers) to work a broken shift of shorter duration compared to school bus drivers. A bus driver whose sole responsibility is taking children to and/or from school can only work at times which coincide with school commencement and finishing times. The duration of this work is likely to be short, having regard to the length of time it will take to complete such journeys. There will necessarily be a break of several hours between the period when children are taken to school in the morning and when children are taken home in the afternoon. The reason for the Award’s provision of a two-hour minimum engagement for each portion of work undertaken by a school bus driver can be readily understood in this context.
The same rationale applies to the work undertaken by Mr Paul which is organised around school hours, but which extends to picking up paying passengers along the same bus route because of the requirement of the contract between Busways Pacific and Transport for NSW. However, the work performed by Mr Paul is specifically excluded from the application of clause 11.3(a)(ii) of the Award because it applies to a person “solely engaged” for the purpose of transportation of school children to and from school. We doubt that the drafters of the clause intended the clause to operate this way as the disadvantages associated with working a shorter shift, as described by the Full Bench in the casual and part time employment case, would apply to work patterns determined by school starting and finishing times regardless of whether paying passengers join the bus route with school children or not.
However, we do not think that this apparent anomaly lends itself to an interpretation whereby clause 11.3(a) of the Award must be read as requiring a minimum payment for each portion of a broken shift. The interpretation of clause 11.3(a) of the Award turns upon the language of the Award, understood in light of its industrial context and purpose.[59] Further, the inquiry is directed to the proper construction of what the instrument says, and not what it was meant to say. This is because the process of construction of an Award is not a search for the actual subjective intent of the makers of the instrument, but the process of construction must direct attention to the words that are actually used.[60]
Mr Paul has provided statements form his colleagues which express views about the meaning of the word “shift” in the context of their work at Busways Pacific. However, these opinions are not determinative of the proper construction of the Award.
The Award permits “rostered duty” to include broken shifts and places no limitation on casual employees performing broken shifts.[61] The definition of broken shift at clause 2 refers to “a shift” meaning singular shift. The reference to “spread of hours permitted under the relevant State or Territory driving hours legislation” in the definition refers to the maximum period permitted from the commencement of the first portion of the broken shift to the end of the second portion of the broken shift. On the basis of the definition and the ordinary meaning of the word “shift” we are of the view that the reference to shift in clause 11.3(a)(i) of the Award can include a broken shift and the reference to minimum payment of three hours requires that an employee rostered on a broken shift must receive a minimum payment of three hours for the entire broken shift rather than each portion of work. On the proper construction of the Award, there is no basis to conclude that each portion of a broken shift is a separate shift and attracts the minimum engagement payment.
We conclude by observing that an application to vary a modern award may be made under s 158 of the FW Act.
Were the classifications matched correctly?
This issues between the parties with respect to classification matching are:
(i)whether the Agreement covers employees undertaking work classified at Grades 1-4 of the Award as declared in the Employer’s Declaration; and
(ii)whether the work undertaken by Mr Paul and others performing the same work is appropriately classified at level 4 or level 5 of the Award.
Classifications are described in Schedule A of the Award as follows:
“A.1 Grade 1
A.1.1 Grade 1 employees are:
(a)employees engaged in various activities not involving the driving of passenger vehicles, whilst carrying passengers, and includes yard and vehicle cleaning/washing, oil and greasing, refuelling, changing tyres, assisting in tyre repairs and supervision of school children on passenger vehicles; and
(b)coach attendants employed to travel on a passenger vehicle undertaking long tours and performing other duties incidental and associated with such work
A.2 Grade 2
A.2.1 Grade 2 employees are employees with skills in excess of Grade 1 and includes:
(a)employees engaged in duties associated with effective ticketing, conducting and customer relations service in all contact with passengers and the general public. Duties include operating and issuing tickets; ensuring correct revenue is collected; balancing and accounting for all tickets to ensure correct money has been received; pre-departure checks of passenger vehicles; driver monitoring and reporting vehicle defects; liaising and communicating with passengers and the general public to provide information and directions and performing various administrative procedures associated with Grade 2 duties;
(b)a driver of a passenger vehicle with a carrying capacity of less than 25 school children to and/or from school; and
(c)driver of a motor vehicle, limousine or hire car capable of carrying less than eight persons and used for hire or reward but excluding motor vehicles used for private purposes.
A.3 Grade 3
A.3.1 Grade 3 employees are:
(a)employees with skills in excess of Grade 2 and includes all employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more school children to and/or from school;
(b)employees engaged in driving a passenger vehicle with a carrying capacity of less than 25 passengers on a specified route service which operates regularly between fixed terminals;
(c)a coach driver of a passenger vehicle which undertakes charter, single day tours or which operates regularly between fixed terminals with a return distance of less than 650 km; and
(d)a bus driver of a passenger vehicle who undertakes charter, single day tours which operates regularly between fixed terminals with a return distance of less than 650 km and who is not otherwise classified at the grade 4 by virtue of the specified route work normally performed or the carrying capacity of the bus.
A.4 Grade 4
A.4.1Grade 4 employees are employees with skills in excess of Grade 3 who efficiently operate passenger vehicles and issue tickets; balance and account for tickets and revenue; practice basic customer relations when providing information to passengers and the general public; inspect and monitor general conditions of the passenger vehicle; perform basic mechanical support duties; report and record information and includes:
(a)employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more passengers on a specified route which operates regularly between fixed terminals; and
(b)a coach driver driving a passenger vehicle with a carrying capacity of 25 or more passengers on extended trip/tour with a return distance of 650 km or more and who may be required to deliver descriptive commentary and/or be absent overnight from their place of residence.
A.5 Grade 5
A.5.1Grade 5 employees are employees with skills in excess of Grade 4. An employee at this level:
(a)performs the duties of driver with a sound understanding of operational work practices and procedures;
(b)performs activities of increasing complexity with some scope to exercise initiative in the application of established work procedures;
(c)may instruct other employees including on-the-job training; operates special services with a sound knowledge of the routes of other depots;
(d)instructs new drivers in route and passenger vehicle operations;
(e)inducts new drivers to aspects of depot operations and information;
(f)communicates with all types of customers with an advanced degree of courtesy and accuracy of information; and
(g)carries out duties associated with passenger surveys and service monitoring.
A.6 Grade 6
A.6.1Grade 6 employees are employees with skills in excess of Grade 5 who are classified as supervisors and/or trainers who perform more complex activities, which may require the exercise of knowledge and initiative in the application and establishment of work procedures.
A.6.2 An employee at this level:
(a)performs the duties of driver plus as required provides training, supervision and inducting and monitoring of trainee drivers;
(b)drives routes in other depots to cover vehicle schedules and assists in preparing rosters and amendments.
(c)is required:
(i)to have a customer service focus; and
(ii)is also required to provide support to operations officers at special events including supervision and co-ordination of transport movements and is responsible for routine probationary service monitoring and assessment of new drivers;
(d)provides support to operations officers at special events including supervision and co-ordination of transport movements; and
(e)is responsible for routine probationary service monitoring and assessment of new drivers.”
In relation to the work covered by the Agreement, Busways Pacific advised the Chambers of the Deputy President through its representative on 16 February 2024 that the Agreement covers employees employed by the employer as Bus Drivers and that the work undertaken by those employees involves driving buses which may be part of school bus services, route services (i.e. not dedicated school bus services), and/or occasional “railway work” which refers to the task of driving a bus that is scheduled to run in substitution of train services where trains are not operating (usually due to trackwork) and transporting passengers that would otherwise be travelling by train. Relevant to this issue is the evidence of Mr Paul, which was not disputed, that he and his colleagues drive buses with a capacity of 55 to 57 passengers.[62]
Evidence
Mr Paul’s evidence
In relation to the work undertaken by Mr Paul and other drivers, Mr Paul gave evidence that in his experience at Raleigh depot:
a.there are drivers who have been performing the work for 20 years, 17 years, 12 years, 6 years and 5 years;
b.most of the bus drivers engaged for 18 months or more perform the following duties in addition to driving the bus:
i. instruct new drivers in route and bus operations;
ii. induct new drivers to depot operations and information; and
iii. perform regular passenger surveys and service monitoring, including a two week per school term passenger number survey which is reported to Transport for NSW.
Mr Lawrence’s evidence
Mr Lawrence gave evidence about training and induction of new employees. Mr Lawrence is employed by Busways Pacific in the role of Assistant Area Manager Lower North Coast and has held this role for approximately six years. Mr Lawrence is responsible for overseeing six depots from Kempsey to Heatherbrae.
Mr Lawrence explained that when a new driver commences with Busways Pacific, they undertake a five-day formalised classroom induction process (induction process), overseen by a qualified driver trainer. Three of these days are within a classroom setting where the new drivers are trained using a standardised process including online training modules and face-to-face discussions with a trainer who is a Busways Pacific Learning and Development Officer who holds certificate IV qualifications. For the last two days the new drivers are provided guidance and training by the trainer on driving and operating a bus safely. This includes all necessary manoeuvring of buses (reversing, parking etc.) and can be conducted in both manual and automatic buses.
Throughout the induction process, the new drivers are taught and informed about Busways Pacific’s and Transport for NSW’s expectations regarding their performance and behaviour as a professional bus operator. The trainer also provides instructions to the new drivers in relation to safety on buses and at the depot, the ticket machines on the buses and in relation to transport connected buses (TCB), which is the tracking system that is installed on the buses by Transport for NSW to track customer usage.
Overall, the training is aimed at teaching the new drivers how to competently fulfil their duties and tasks as professional drivers. The qualified trainers are not drivers engaged under the Agreement but hold the relevant skills and qualifications to operate buses. The trainers are based both in Sydney and also on the North Coast.
The trainer will also conduct relevant site inductions where possible, otherwise site inductions will be conducted by the Depot Manager when the new driver first commences at their allocated depot.
Once the new drivers have completed the induction process, the new drivers are then allocated out to the depots that they have been contracted to or where they will ordinarily be working from.
The new drivers are then allocated to a specific route or shift. The new drivers then typically have a period of two weeks to apply the theory that they have learnt throughout the induction process into practice. During this initial two-week period, Busways Pacific pairs the new driver with an existing driver.
For the first day or two of this initial period, the new driver will observe their buddy undertaking the various duties that will be required of them when they themselves take over driving the bus. This includes learning the specific route, observing how to interact with students and all passengers and also observing how to safely navigate a bus.
Depending on how confident the new driver is, they may suggest after the first day of observing their buddy to take control of the wheel the following day. Once the new driver takes over the wheel, the role of the buddy is to be there for the new driver in case they require any assistance. A buddy can also give the new driver tips or feedback if need be, for example, telling a new driver to be careful of overhanging branches.
A buddy’s role is to be a buddy or mentor for the new driver during their initial period. It is not to be a trainer of any sort, as the expectation is that the new driver has already been trained and inducted throughout the formalised induction process. During this two-week period, the relevant Depot Manager and Area Managers will check in with the new driver to see how they are progressing throughout this stage. They can also ask the new driver’s buddy for any feedback.
If a new driver is not progressing as expected throughout this two-week period, the Depot Manager may then organise for further formalised training to be undertaken by the new driver in order to ensure that they can be accredited to drive the bus. This further training is not conducted by the new driver’s buddy.
Once the relevant Depot Manager believes that the new driver is progressing competently, they will then make a booking with Busways Pacific learning and development team to have a certificate IV qualified trainer come out to assess and observe how the new drivers complete the designated route or shift. The qualified trainer will use a competency checklist to assess the new driver.
A buddy has no decision-making power or influence when it comes to the qualified trainer deciding if the new driver has passed or failed their initial period. This decision is solely at the discretion of the qualified trainer. There is no requirement that an employee must be engaged for 18 months before being eligible to be a buddy.
If an employee has demonstrated to Busways Pacific that they are competent drivers, they are able to be a buddy to a new driver. In some depots, there also might be a slightly higher usage of buddy shifts where they are allocated as a means of giving the employees something to do in order for their employment to be maintained during quiet periods.
For each day that an employee is a buddy for a new driver, they are paid an allowance of $10 per day. The buddy system is also used to provide route understanding to any driver that has already been deemed competent to learn a new route or trip. This will include providing guidance to either other drivers within the same depot, or drivers coming from other depots to assist with roster coverage. These drivers may have been engaged with Busways Pacific for a significant period of time but are shown new routes either through personal request or as part of business contingency planning.
Mr Robert Gibson is the Workplace Relations manager for the Busways Group. Mr Gibson provided evidence that in the previous 6 months, approximately 439 employees were engaged under the Agreement. Of those employees,
(a) approximately 48.1% of employees have not performed any buddy work;
(b) approximately 37.6% have received the buddy allowance for one (1) week or less;
(c) approximately 12.4% have received the buddy allowance for two (2) weeks or less; and
(d) approximately 1.9% have received the buddy allowance in excess of two (2) weeks.
Mr Gibson’s evidence
Mr Gibson provided a copy of Mr Paul’s job description which provides the following duties:
·Work shifts and rosters as directed, carrying out all shift duties and instructions whilst ensuring that the guidelines in the Busways Employee Manual are followed.
·Drive allocated vehicles along specified routes as directed, ensuring the care, safety and comfort of Busways’ customers.
·Keep management informed of any issues - such as late running or overcrowding - which may affect the timetable or school service.
·Maintain and wear the uniform provided - be neat and tidy at all times.
·Complete and/or record all relevant shift reports, defect notices, driver occurrence reports and other reports as required.
·Report any incidents or accidents immediately to management and complete an ‘Internal Accident Report’ upon returning to the depot.
·Operate Ticket machine, collect fares, check passes and ensure every passenger (except school students) is issued with a Busways ticket.
·Visually check lights, tyres and panel for damage and report any defects as per Busways Sign On/Sign Off Procedure.
·Ensure correct change is given, Driver Journals are completed correctly and that all monies collected is deposited in the safe provided at the end of your last shift for the day.
·Participate in all relevant training and meetings as required to ensure TfNSW, RMS, WHS and Busways requirements are met; attend meetings with management as requested.
·Not perform or attempt to perform work under the influence of Drugs and/or Alcohol. Note: A maximum Blood Alcohol Limit as per legislation applies to drivers.
·Immediately report to management any matters of criminal or civil matters, or health issues relevant to the currency of your driver’s licence or driver authority or your ability to drive.
·Are to remain within legal driving hour parameters and report all secondary employment.
·Perform ad-hoc tasks and other duties as directed.
In relation to passenger surveys, Mr Gibson’s evidence was that as part of Busways Pacific’s contract requirement with Transport for NSW, it is required to provide Transport for NSW with the average loading numbers of students quarterly. To ensure this requirement is met, Busways Pacific requires its drivers, once a quarter, for a two-week period, to perform a "load count” regarding how many students get onto their buses.
Mr Gibson said that this process was previously conducted through a ticket machine, however, such machines are no longer installed on the school buses and therefore the load count must be conducted by hand on a piece of paper.
As a professional driver, it is standard practice and an expected requirement that all drivers when transporting passengers on their bus know their load count at all times. This is imperative as there are maximum load requirements which must be adhered to and additionally, there are seat belts installed on each bus to fit the maximum load. If drivers are unaware of their load count, it is uncontroversial that this could lead to serious safety breaches, for example, having more than the maximum passengers allowed onboard means that some individuals would not have access to a seat belt.
Additionally, such an activity is not conducting a “passenger survey”. It is simply a passenger count which involves no interaction with the passengers (such as a survey ordinarily
would).
Submissions
Mr Paul
Mr Paul submitted that Busways Pacific provided scant information in relation to classification, simply asserting that “Motor Bus Driver” in the Agreement corresponded to “Grades 1 – 4” in the Award. In its application for approval of the 2017 Agreement, Busways Pacific had identified the 2017 Agreement classification, “Bus Driver”, as corresponding to Grades 1 – 5 under the Award and asserted, “No bus drivers perform Grade 6 duties”.
Mr Paul submitted that his evidence shows that most Busways Pacific drivers perform duties and exercise skills comparable to Grade 5 under the Award. It is reasonable to infer, so Mr Paul contends, that some of these drivers performed the same duties and exercised the same skills at the test time. If employed for the minimum engagement period for casuals, Mr Paul submitted that these drivers are worse off under the Agreement than under the Award.
Mr Paul submitted that the Award is not necessarily a duty-based classification system but a skills and experience-based classification system which enables the rewarding of and encouragement of the development of skills and experience. The Agreement, having only one category of driver, does not provide any scope for recognition in terms of pay for employees who demonstrate superior skills and experience.
Busways
Busways Pacific submitted that the employees covered by the Agreement are engaged as Motor Bus Drivers to drive buses with a carrying capacity of 25 or more passengers. They are not engaged for the principal purpose of performing a range of more complicated tasks such as training; inducting new employees into depot operations; instructing drivers on route or passenger vehicle operations; conducting passenger surveys; or conducting service monitoring.
Busways Pacific does not accept that the occasional use of drivers as “buddies” on a sporadic basis qualifies the employees as persons engaged on order to perform on-the-job training and instruction. The evidence indicates that a driver like Mr Paul might only be asked to act as a buddy about 2 weeks per year. This is the type of activity that would qualify for a higher duties allowance under clause 15.3 of the Award. It does not necessarily mean that the casual employees (whose engagement starts and concludes with the beginning of each engagement) are engaged on an ongoing basis as Grade 5 employees.
Consideration
At the outset, we note that Grades 1 and 2 of the Award do not apply to the work of drivers covered by the Agreement. Grade 1 applies to with employees engaged in various activities not involving the driving of passenger vehicles. The only bus driving work that Grade 2 applies to is that where the vehicle being driven has a carrying capacity of less than 25 school children to and/or from school. Clause 2 of the Agreement provides that it applies to persons employed wholly or principally as Bus Drivers. Further, Busways Pacific has clarified that this means driving buses which may be part of school bus services, route service, and/or occasional “railway work”. Given that there is no dispute that the buses driven by employees have a capacity of 55 to 57 persons, there is no evidence to support a finding that Grades 1 and 2 apply to the work of any person covered by the Agreement.
Grade 3 of Award deals with employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more school children to and/or from school so Grade 3 potentially applies to employees of Busways Pacific who are just doing this work. A Grade 4 employee is expected to have more skills than a Grade 3 employee. In addition, the duties which distinguish Grade 4 from Grade 3 is the requirement that Grade 4 employees are able to issue tickets; balance and account for tickets and revenue; practise basic customer relations when providing information to passengers and the general public; inspect and monitor general conditions of the passenger vehicle; perform basic mechanical support duties and report and record information. Grade 3 has no such requirements and is limited to driving the vehicle.
A Grade 5 employee is expected to have more skills than a Grade 4 employee. In addition, the duties which distinguish Grade 5 from Grade 4 is the requirement that a Grade 5 employee performs activities of increasing complexity with some scope to exercise initiative in the application of established work procedures, instructs new drivers in route and passenger vehicle operations, inducts new drivers to aspects of depot operations and information, communicates with all types of customers with an advanced degree of courtesy and accuracy of information; and carries out duties associated with passenger surveys and service monitoring. In addition, a Grade 5 employee may instruct other employees including on-the-job training and operate special services with a sound knowledge of the routes of other depots.
Apart from Mr Paul’s contention that his colleagues instruct new drivers in route and bus operations, induct new drivers to depot operations and information and perform regular passenger surveys and service monitoring, there is no evidence to support Mr Paul’s submission that the work covered by the Agreement is properly classified as Grade 5. Further, Mr Paul provides no evidence of performance of activities of increasing complexity with some scope to exercise initiative or of communicating with all types of customers with an advanced degree of courtesy and accuracy of information which are also requirements of Grade 5.
Conversely, Busways Pacific has provided detailed evidence about inductions, training and the buddy system. This evidence established that drivers are not involved in induction and training of new drivers. Drivers are involved in the buddy system which is likely to be regarded as on the job training under clause A.5.1(c) but these duties are performed on an irregular basis. Further, Mr Paul’s job description does not refer to any of the requirements of Grade 5 of the Award. Taking into account all of the evidence before us, we are satisfied that the appropriate Award classification for drivers covered by the Agreement is, and was at the time the application for approval of the Agreement was made, Grade 4, unless they are only transporting school children, in which case Grade 3 may apply (assuming the other requirements of Grade 3 are met).
Conditions of employment
Mr Paul relies upon a number of conditions which are available under the Award but not under the Agreement to submit that the Agreement does not meet the “better off overall test”. These are dealt with below.
Uniform Allowance
As part of Mr Paul’s employment with Busways Pacific, he is required to wear boots or closed footwear. Under the Agreement, Mr Paul is not eligible for reimbursement of this expense. However, clause 17.3(c) of the Award provides:
“An employee required to wear a uniform (including boots or other required footwear) will be reimbursed for all reasonable and necessary costs incurred in purchasing that uniform if the uniform is not provided by the employer.”
Mr Gibson provided evidence that Busways Pacific does require its employees to wear clean black shoes. Otherwise, uniforms are provided by Busways Pacific.
Consideration
Based on the material before us, we accept Mr Paul’s contention that he would be eligible to be reimbursed for the cost of footwear required for work under the Award but not under the Agreement. This is a relevant detriment which must be considered as part of a global assessment under the BOOT.
Medical Assessment
Mr Paul’s evidence is that as part of his employment, he was required to undergo a medical examination on engagement, and he is required to have an annual medical examination. He underwent a medical examination on 27 January 2023 which cost $148.50. There is no Medicare rebate for this service. He has never been reimbursed for this expense. He has received notice of the requirement to undertake a medical examination this year. The tax invoice attached to Mr Paul’s statement issued by his doctor stated that it was for a “Driving Medical (Commercial) Not Medicare”.
Clause 17.3(g)(iii) and (iv) of the Award provides:
“(iii) Where the employer requires an employee to undertake a medical examination the employer will pay the employee an allowance equal to the difference between the cost of the examination and the Medicare rebate.
(iv) An employee required to undertake a medical examination for the purposes of obtaining a relevant licence will be paid an allowance in accordance with clause 17.3(g)(iii), provided that the employer determines the certified medical practitioner who is to perform the examination.”
Mr Gibson provided evidence that Busways Pacific does require its employees to undertake a medical examination at the employee’s own expense upon engagement, however, once Busways Pacific has received this medical clearance, employees are only required to undertake an annual medical examination, with a practitioner of their choosing, once they are over the age of 65 or have an ongoing medical issue. Busways Pacific does not reimburse its employees for such medical examinations. The annual medical examination referred to by Mr Paul is required as a precondition to an employee obtaining/maintaining their Bus Driver Authority, which is also paid for by each employee. The same principle applies with licence renewals – this cost is borne by each employee.
Consideration
It appears that that the annual medical examination which Mr Paul is referring to is required for the purpose of obtaining a relevant licence rather than a requirement of his employer. Under Clause 17.3(g)(iv) of the Award, an employee is only entitled to reimbursement for such a medical examination if the certified medical practitioner who is to perform the examination is determined by the employer which is not the case here. However, the initial medical examination that the employee is required by their employer to undertake upon engagement and every three years after that is covered by clause 17.3(g)(iii) of the Award. This detriment compared to the Agreement must be considered as part of the global assessment of the BOOT.
Private Vehicle Expenses
Mr Paul is aware of several Busways Pacific drivers who work from a depot other than their home depot. For these drivers there is no public transport available for travel to the non-home depot. These drivers have informed Mr Paul that they have not been paid an allowance for vehicle expenses. After Mr Paul lodged the Notice of Appeal, drivers who had previously been told that vehicle allowances were not available have been told that they can claim vehicle expenses.
Clause 17.3(f) of the Award provides that an employee will be paid an allowance per kilometre where no form of public transport is available and the employee is required to use a personal vehicle for transportation between the ordinary starting and finishing place and any other place of work directed by the employer.
Clause 24 of the Agreement entitles employees to be paid at ordinary rates for any time reasonably occupied in journeying to an alternative depot and reimbursement for “reasonable fares incurred”. In addition, Mr Gibson provided evidence that Busways Pacific has a policy in place which details how employees are paid when they use their own vehicle for company business. Under the policy, the reimbursement for the use of an employee’s private vehicle for company business is currently 85 cents per kilometre. Further, the contract of employment with employees at clause 7 states:
“From time to time you may be requested to work in other Busways depots. You are under no obligation to accept any work that’s offered outside of your base work location.”
Consideration
Reimbursement of private vehicle expenses is required under the Award only when an employee is required to use a personal vehicle for transport to another Busways Pacific depot. It appears from the evidence that the attendance of drivers at other depots is likely to be in Busways Pacific’s interest to ensure that routes are covered and as such, it is appropriate that Busways Pacific is reimbursing drivers’ travel expenses under its policy. In light of these matters and having regard to the fact that under the contract of employment there is no requirement to accept work outside of the base location, that fact that the Agreement does not provide for reimbursement of private vehicle expenses is not a significant detriment to be taken into account as part of the global assessment under the BOOT.
Living Away from Home Allowance
Mr Gibson provided evidence that in the past 12-months on the North Coast, Busways Pacific has had two different drivers, who are covered by the Agreement, who have claimed a living away from home allowance from Busways Pacific on a total of 16 occasions:
(i) Employee One: 9 claims over the past 12-months, each claim on average was for 6 days.
(ii) Employee Two: 7 claims over the past 12-months, each claim on average was for 6 days.
At the time of the approval of the Agreement, Mr Gibson believed the application of a living away from home allowance would not arise.
Consideration
The Agreement does not provide for the payment of a living away from home allowance. We accept that this is a detriment compared to the Award, but do not consider it to be a significant BOOT concern in light of the infrequency with which employees covered by the Agreement work away from home.
Major Portion of Work Performed
Clause 7(b) in the Agreement provides the following:
“Payments shall be made for each shift at the rate applicable to the day on which the major portion of the work is performed.”
Mr Paul is aware of drivers at Raleigh depot and Macksville depot being rostered to work shifts that commence at 5.40 pm on Friday and conclude at 1.31 am on Saturday and commence 5.40 pm on Saturday and conclude at 1.31 am on Sunday. Mr Paul is informed by these drivers, and believes that they are not paid:
a. the minimum engagement period under the Agreement for Saturday (4 hours) and Sunday (5 hours), respectively; or
b. penalty rates for Saturday (time and one-half) and Sunday (double time) respectively.
In response, Mr Gibson’s evidence is that this issue only arises where work is spread across multiple days. Currently, this only occurs for two (2) weekly shifts at the Coffs Harbour and Macksville depots as follows:
Friday night into Saturday morning shifts
(a) Coffs Harbor Depot: start 16:10hrs (Friday) and finishes at 0:59hrs (Saturday)
(b) Macksville Depot: start 15:57hrs (Friday) and finishes at 01:38hrs (Saturday)Saturday night into Sunday morning shifts
(a) Coffs Harbor Depot: start 16:49hrs (Saturday) and finishes at 01:38hrs (Sunday)
(b) Macksville Depot: start 17:48hrs (Saturday) and finishes at 02:10hrs (Sunday)
Busways Pacific provided calculations to show that for each of the Macksville Depot shifts, employees were better off overall under the Agreement compared to the Award. Our calculations produced slightly different results to the calculations of Busways Pacific which is likely due to rounding. We have reproduced the calculations in the following table but have referred to the Agreement hourly rate and the attendance rates separately (rather than adding them together as Busway Pacific did in its calculations):
| Award payment (Grade 4) | EA Payment | Disparity in shift payment | |
| Start 15:57hrs (Friday) and finish at 01:38hrs (Saturday) including 30 minute unpaid meal break) | Hourly rate: $33.57 until 12am (incl loading and 15% late night penalty. Hourly Rate: $41.97 from 12am (incl loading + 150%) Pay: $322.00 | Hourly Rate: $35.4999 (incl loading) + $16.2443 attendance allowance Pay: $342.25 | +$20.25 |
| Start 17:48hrs (Saturday) and finish at 02:10hrs (Sunday) including 30-minute unpaid meal break) | Hourly Rate: $41.97 until 12am (incl loading and Sat penalty) Hourly Rate: $53.96 from 12am (incl loading + 200% penalty) Pay: $356.14 | Hourly Rate: $49.1551 (incl loading + 150% Sat penalty) + $16.2443 + attendance allowance) Pay: $ $402.93 | +$46.79 |
Consideration
On the basis of our calculations, we find that employees are better off overall under the Agreement compared to the Award when working the “Friday night into Saturday morning” and “Saturday night into Sunday morning” shifts specified in Mr Gibson’s evidence.
Conclusions in relation to better off overall test
In ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association,[63] the High Court characterised the evaluative task required by the BOOT as follows:
“Whether the Full Bench was satisfied that an employee was better off overall under the Agreement than under the award required an evaluative assessment after consideration of the provisions of the award and the Agreement that may have been more beneficial to employees and those that may have been less beneficial (Re Armacell v Australia Pty Ltd[2010] FWAFB 9985; (2010) 202 IR 38 at 49 [41]). This assessment is a matter of the kind which has been described in other contexts as:
‘a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.’ (British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201, cited with approval in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 493-494; 59 ALR 529 at 532).”
In our view, the Deputy President correctly described the better off over test as inquiring whether employees would be better off overall under the Agreement than under the relevant award, not better off on a line by line or itemised basis.
The Commission’s file in relation to the Agreement shows that the Deputy President identified issues relevant to her assessment of the better off overall test and sought clarification or undertakings in relation to these issues from Busways Pacific. In particular, the Deputy President raised concerns about the minimum engagement period for casual employees and broken shifts, which Busways Pacific responded to.
We have found that a casual driver (other than a school bus driver) rostered on a broken shift is entitled to receive under the Award a minimum payment of 3 hours for the entire broken shift rather than each portion of work and that the appropriate Award classification for drivers covered by the Agreement is Grade 4, unless they are only transporting school children, in which case Grade 3 may apply.
We have also considered the Allowances in the Award which are not provided for in the Agreement and accept that they give rise to some detriments which must be assessed as part of an overall BOOT assessment.
In large part, Mr Paul’s appeal relies upon an employee being rostered to perform shifts that are limited to the minimum engagement period of 2.1 hours to submit that an employee is not better off under the Agreement compared to the Award.
If an employee was rostered for just 2.1 hours (which is 2 hours and 6 minutes) per day at test time, the employee would be paid a gross amount per day of $90.79 under the Agreement compared to $89.94 under the Award (on the basis that the employee is classified at Grade 4 under the Award). Mr Paul asserts that the value of the allowances which are not included in the Agreement exceed the above Award payment of $0.85 if an employee was only rostered for the minimum engagement period. However, for the reasons set out above, we do not consider that the absence of some Award allowances from the Agreement would be likely to give rise to a significant financial detriment for employees covered by the Agreement.
There was no material before the Deputy President in relation to employees’ usual work patterns or rosters at test time. There was an opportunity for Mr Paul to provide detailed evidence about this matter but he did not do so, apart from asserting that his usual shift pattern in the time he has worked for Busways Pacific is a morning shift of 1 to 2 hours and an afternoon shift of 1 to 2 hours on each school day and providing a copy of his roster for the week commencing 18 March 2024. The letter which Mr Paul and other drivers sent to Busways Pacific about short shifts on 14 September 2023 suggests that shifts had been reduced at Raleigh depot at about the time that the letter was sent, which was more than two years after the Agreement was approved. The letter referred to a specific broken shift which was just less than 3 hours duration.
Busways Pacific produced rosters for each of the employees who are currently covered by the Agreement for the four-week period from 12 February 2024 to 8 March 2024. There is no evidence that employees are regularly rostered to work 2.1 hours per day. Although this is not directly relevant as to whether the Agreement passed the BOOT at test time, the letter from employees dated 14 September 2023 suggests that they may be working shorter shifts now compared to when the Agreement was approved. The roster for Mr Paul is as follows:
| Date | Roster | Time worked |
| 12 February 2024 | 7:06-9:03 14:55-16:31 | 3.55 hours 0.1 hours OT |
| 13 February 2024 | 7:06-9:03 14:55-16:31 | 3.55 hours 0.08 hours OT |
| 14 February 2024 | 7:06-9:03 14:55-16:31 | 3.55 hours 0.12 hours OT |
| 15 February 2024 | 7:06-9:03 14:43-16:46 | 4 hours 0.48 hours OT |
| 16 February 2024 | 7:06-9:03 14:43-16:46 | 4 hours 0.15 hours OT |
| 17 February 2024 | 7:38-17:08 17:08-17:22 OT | 9.5 hours 0.23 hours OT |
| 19 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 20 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.4 hours OT |
| 21 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 22 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 23 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 26 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 27 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.2 hours OT |
| 28 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 29 February 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.08 hours OT |
| 1 March 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.12 hours OT |
| 4 March 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.08 hours OT |
| 5 March 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.13 hours OT |
| 6 March 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.23 hours OT |
| 7 March 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours |
| 8 March 2024 | 07:16-9:21 14:43-16:46 | 4.13 hours 0.15 hours OT |
The roster shows that for this period, Mr Paul was consistently rostered to work at least four hours, apart from three occasions when he was rostered to work 3.55 hours plus a small amount of overtime.
There is no material to warrant a finding, at the time the Agreement was approved by the Deputy President, that casual employees would only, or almost always, work shifts for the minimum engagement period of 2.1 hours. A roster pattern of this kind is, and was at the time the Agreement was approved, unlikely to be worked by casual employees. This is relevant to Mr Paul’s contention that the Agreement did not pass the BOOT.[64]
On the basis of the material before us, we do not consider that employees are currently worse off under the Agreement compared to the Award or, more importantly, that the Deputy President erred in finding that the Agreement passed the BOOT at test time. We consider that the Deputy President was correct to conclude that the superior wage rates and other benefits under the Agreement compared to the Award outweighed the detriments.
We do not accept that the Deputy President made errors of fact in her determination. We have considered the alleged misleading information identified by Mr Paul in his Notice of Appeal. To the extent that some aspects of the Employer’s Declaration may have been incorrect, we do not accept that the Deputy President was, or could reasonably have been, misled by this information in her determination of this matter. For example, we have noted above that grades 1 and 2 of the Award do not apply to the work of drivers covered by the Agreement, although the Employer’s Declaration stated that grades 1 and 4 of the Award were the relevant classifications. This did not affect the Deputy President’s finding that bus drivers covered by the Agreement were better off overall compared to the Award.
Conclusion
We have found that the Deputy President correctly applied s 186 when determining the matter and that there is no basis to conclude that the Deputy President acted upon a wrong principle, mistook the facts, took into account an irrelevant consideration or failed to take into account a material consideration, or made a decision which is plainly unreasonable or unjust.
For this reason, it is unlikely that any of the grounds of appeal would be upheld if time was extended. Further, there was a lengthy period of delay in filing the appeal. We accept the submissions of Busways Pacific that there are limited reasons to explain why it took Mr Paul more than 12 months to file the appeal once he became employed on 20 February 2023, having regard to Mr Paul’s concerns about the Agreement developing in September 2023, Mr Paul’s appointment as a bargaining representative in October 2023, and his receipt of information from the Commission in December 2023 and from the Fair Work Ombudsman in February 2024. We also accept that Busways Pacific will experience prejudice as a result of the delay (if an extension of time is granted) as it has been operating under the Agreement for three years, including paying wages in exchange for the terms negotiated. Taking all of these matter into account we have decided not to allow further time for a notice of appeal to be lodged.
We order as follows:
1.We do not allow an extension of time for the lodgement of the Notice of Appeal.
2.The appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr P Batley of Counsel, for the Appellant.
Mr L Izzo of Australian Business Lawyers & Advisors, for the Respondent.
Hearing details:
2024.
Sydney:
13 May.
Final written submissions:
Appellant, 20 May 2024.
Respondent, 15 May 2024
[1] [2021] FWCA 2019
[2] Ibid, [6].
[3] Ibid, [10].
[4] Ibid, [12].
[5] Ibid, 13(b)
[6] See for example Max Vincent v Roof Safe Pty Limited[2023] FWCFB 182, [27]; Levin v Douglas and Mann Pty Ltd (T/A Histopath Diagnostic Specialists) [2022] FWCFB 39, [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [21]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11].
[7] (1994) 34 NSWLR 155.
[8] Ibid, 160.
[9] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963, [95].
[10] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963, [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia; [2014] FWCFB 1317, [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [21]-[25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11]; Max Vincent v Roof Safe Pty Limited[2023] FWCFB 182, [27]
[11] [2014] FWCFB 4822
[12] Ibid, [5].
[13] Ibid, [61]
[14] [2022] FWCFB 191
[15] Ibid. [112].
[16] Witness Statement of Robert Gibson dated 6 May 2024, [2].
[17] Ibid, [11]-[13].
[18] Ibid, [17]-[18].
[19] Ibid, [15].
[20] AB, 136.
[21] AB, 133-134.
[22] AB. 130-131.
[23] AB, 119.
[24] AB, 72.
[25] AB, 47-48.
[26] Declaration of Andrew John Paul dated 9 April 2024, [2].
[27] Ibid, [3].
[28] Ibid, [15].
[29] Ibid.
[30] Ibid, [17].
[31] Ibid, [18].
[32] Ibid, [6].
[33] Ibid, [7]-[10].
[34] Ibid, [11].
[35] Ibid, [13].
[36] Ibid, 14].
[37] [2009] AIRCFB 450,
[38] [2009] AIRCFB 826, [229]
[39] [2013] FWC 3221, [24]
[40] Ibid, [28].
[41] [2017] FWCFB 3541.
[42] [2014] FWC 1790.
[43] [2014] FWC 8583, [3].
[44] [2014] FWC 1790.
[45] [2014] FWC 8583, [15].
[46] [2017] FWCFB 3541, [402].
[47] [2012] FWAFB 6913, [12].
[48][ 2017] FWCFB 3541, [399].
[49] Ibid, [404].
[50] [2017] FWCFB 3541, [408].
[51] [2018] FWCFB 4695, [85].
[52] Ibid, [86].
[53] Ibid, [89].
[54] Ibid, [90].
[55] Ibid, [91].
[56] [2017] FWCFB 3541, [799]-[801].
[57] Ibid, [826]
[58] [2017] FWCFB 6181.
[59] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J) and [66]-[67] (Kirby J) (Amcor).
[60] King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]
[61] See clause 13.2(a)
[62] Statement of Andrew John Paul stated 9 April 2024, 20.
[63] [2017] HCA 53, 262 CLR 593.
[64] CFMEU v Allstyle Concrete[2018] FWCFB 3823 at [9]
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