Bonney Energy Pty Ltd T/A Bonney Energy

[2019] FWCA 3313

[2019] FWCA 3313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bonney Energy Pty Ltd T/A Bonney Energy
(AG2019/18)

BONNEY ENERGY FORMER CALTEX VICTORIAN/SOUTH AUSTRALIAN DRIVERS’ AGREEMENT 2018

Road transport industry
COMMISSIONER WILSON	MELBOURNE, 12 JUNE 2019

Application for approval of the Bonney Energy Former Caltex Victorian/South Australian Drivers’ Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Bonney Energy Former Caltex Victorian/South Australian Drivers’ Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bonney Energy Pty Ltd T/A Bonney Energy (Bonney Energy). The Agreement is a single enterprise agreement.

[2] Objections to approval of the Agreement were raised by an employee covered by the Agreement on two grounds. Firstly, that changes to the shift allowance provisions particularly surrounding the time periods for when shift penalties apply from the previous enterprise agreement to the current Agreement will result in a reduction in his entitlements. Secondly, that the rates of pay under the Agreement are not competitive against current industry standards of other enterprise agreements.

[3] Clayton Utz acting on behalf of Bonney Energy made submissions in response to the objections raised as follows:

“Shift Allowance

The shift allowance referred to by Mr [name removed] continues to exist under the proposed Agreement at clause 11.6.  Provided that employees are rostered within the spread of ordinary hours at clause 10.1(i) of the Agreement, there is otherwise no entitlement to be rostered to work a particular shift or roster pattern under either the NES or Award.  Further we consider it is a matter for our client to set rostering patterns (consistent with any requirements in the Award or NES) in accordance with business requirements. In accordance with clause 10.3 of the proposed Agreement, general start/finishing times will be established at each location after consultation between the Company and Employees.  We note that the option to change driver rosters and start times existed under the previous enterprise agreement and in our view such an arrangement is no less beneficial than the consultation requirements under clause 9A of the Award.   As set out in our correspondence dated 6 May 2019, Mr [name removed]’s concern that he is disadvantaged in respect of a purported arrangement not contained in any of these instruments is not a matter that the Commission can or should take into consideration when determining whether to approve the Agreement.

Hourly Rate

The minimum hourly rate for a Transport Worker Grade 6 (the comparable classification under the Road Transport and Distribution Award 2010) is $21.70.  Under the Agreement, drivers in the Articulated (Mass) classification will be paid $30.08 per hour, which is a significant increase on the minimum Award rate and is therefore not less favourable.  The pay arrangements of other companies in the industry is not a matter that the Commission can or should take into consideration when determining whether to approve the Agreement.”

[4] Section 186(2)(d) of the Act provides as far as is relevant that:

“186 When the FWC must approve an enterprise agreement—general requirements

...

(2) The FWC must be satisfied that:

(d) the agreement passes the better off overall test.”

[5] Section 193 of the Act then prescribes the requirements for the better off overall test as follows:

“Subdivision C—Better off overall test

193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) 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.

…”

[6] It is noted that the role of the Commission is to assess whether an Agreement is better off compared to the relevant award in this case being the Road Transport and Distribution Award 2010 (the Award). The role of the Commission is not to assess whether employees are better off against industry standards, nor a previous enterprise agreement. With this in mind I note that the shift penalties under the Agreement do vary from those under the Award.

[7] Clause 24 of the Award provides for afternoon shift penalties of 17.5% for work finishing after 6:30 PM but not later than 12:30AM as well as night shift penalties of 30% for work finishing after 12:30 AM and at or before 8:30 AM.

[8] Alternatively, clause 11.5 of the Agreement provides 12.5% penalties for employees who commence a shift before 5:30AM being a reduction of 17.5% from the night shift penalty under the Award. It is noted however, that clause 10 of the Agreement provides ordinary hours of work as 7 hours per day, 35 hours per day between the spread of 5:30 AM to 6:30 PM with work performed outside the ordinary hours with overtime payable outside those hours in accordance with clause 11.10 of the Agreement. Additionally, rates of pay under the Agreement are between 33.71% - 42.96% above that of the Award and therefore I am satisfied that any reduction in shift penalties under the Agreement are compensated for by the increased wage rates.

[9] I am also satisfied that in accordance with the submissions put forth by Clayton Utz that the pay arrangements of other companies in the industry is not a matter that the Commission can or should take into consideration when determining whether to approve the Agreement. As discussed above, given that the rates of pay under the Agreement are between 33.71% - 42.96% above the Award I am satisfied that the requirements of s.186(2)(d) of the Act are met in that the Agreement passes the better off overall test.

[10] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[11] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[12] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 June 2019. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503421  PR708274>

Annexure A