Bus and Coach Drivers Association Incorporated v Kuhle Pty Ltd atf the Kuhlewein Family Trust T/A Coast & Country Buses

[2020] FWC 3208

[2020] FWC 3208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Bus and Coach Drivers Association Incorporated
v
Kuhle Pty Ltd atf The Kuhlewein Family Trust T/A Coast & Country Buses
(B2020/250)

COMMISSIONER HUNT BRISBANE, 2 JULY 2020

Application for a majority support determination – whether group of employees fairly chosen – group of employees geographically distinct – application granted.

[1] On 29 April 2020, the Bus and Coach Drivers Association Incorporated (the Applicant) made an application for a majority support determination pursuant to s.236 of the of the Fair Work Act 2009 (the Act). The application concerns certain employees of Kuhle Pty Ltd atf The Kuhlewein Family Trust T/A Coast & Country Buses (Coast & Country Buses/Respondent) that operate services from Coast & Country Buses’ Bundaberg Depot located at 3 Semut Court, Moore Park Beach QLD 4670. Coast & Country Buses also operate services from depots in Kingaroy, Wamuran (also head office), Childers and Toogoolawah.

[2] The Applicant seeks a determination that a majority of employees at the Bundaberg Depot, being bus drivers, want to bargain with the Respondent for an enterprise agreement. A contentious part of the application concerns whether the group of employees at the Bundaberg Depot who will be covered by the agreement is fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct from the Respondent’s other depots and offices.

Background

The first application

[3] The application the subject of this decision was made following the first application in matter B2020/147. Concerns were raised about whether the first application was validly lodged. Mr Darren Dickson, Secretary of the Applicant had, between 3-5 March 2020 obtained a signed petition of nine employees stating that they wish to bargain with their employer.

[4] The application in B2020/147 was made on 9 March 2020. During a hearing of the application on 29 April 2020, Mr Dickson conceded that at the time of making the application, the Applicant had not been appointed, pursuant to s.176(1)(c) as a bargaining representative of employees who had signed the petition and wanted to be covered by a proposed agreement. The Applicant is not a registered union and therefore is not an employee organisation pursuant to s.176(1)(b) of the Act providing an automatic right to make an application on behalf of members.

[5] The relevant employees at the Bundaberg Depot each appointed the Applicant as a bargaining representative on 20 March 2020. Accordingly, the application was not validly made as the Applicant was not, as at 9 March 2020, a bargaining representative of an employee who will be covered by the proposed agreement pursuant to s.236(1) of the Act. The application in matter B2020/147 has been withdrawn, although I have permitted the submissions and evidence in the first matter to be considered in this present application.

The second application

[6] The second application was made on 29 April 2020. I am satisfied that the Applicant was a bargaining representative of employees who will be covered by a proposed agreement.

Hearing

[7] This matter was heard before me by telephone on Thursday, 4 June 2020. Mr Dickson appeared for the Applicant. Mr Wayne Morgan, Bus Driver at the Bundaberg Depot, and Mr Derek Alcorn, Regional Operations Manager at the Bundaberg Depot appeared at the hearing and gave evidence for the Applicant and were cross-examined. Witness statements of seven bus drivers were admitted into evidence.

[8] Mr Ian MacDonald, National IR Manager of the Australian Public Transport Industrial Association, appeared for the Respondent together with Mr Matthias (Marty) Kuhlewein, Manager Director of the Respondent.

Relevant Legislation

[9] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

Submissions and evidence of the Applicant

Evidence of Mr Alcorn

[10] Mr Alcorn has been employed by Coast & Country Buses as the Regional Operations Manager at the Bundaberg Depot since 2012. He oversees the day-to-day operations of the depot, allocates bus drivers to their school runs and any charter work as required, ensuring that the drivers complete these tasks correctly, timely and in compliance with Queensland transport regulations. He undertakes all maintenance, servicing and repairs on the fleet as required, and ensures that they are always operationally ready and compliant. Further, he keeps all service records, prepares and presents all buses for their bi-annual inspections, and weekly he sends pays and any paperwork to head office in Wamuran.

[11] With respect to the employment of staff, Mr Alcorn stated that he conducts the ‘hiring and firing’. He stated that when the Bundaberg Depot needs additional bus drivers, he contacts local employment agencies or uses word-of-mouth in the local community to find suitable drivers. Once employed, he trains the bus drivers on their run and timetable and completes any paperwork as required.

[12] Mr Alcorn stated that at the commencement of employment, part of his role was to bring together the 11 Bundaberg Depot bus drivers and unite them into one team. He assists with audits conducted by Queensland Transport and liaises with Queensland Transport about bus runs. Mr Alcorn explained that he has previously engaged chartering work for Coast & Country Buses around Bundaberg. Mr Alcorn also explained certain operational and payroll issues experienced by the Bundaberg Depot, to which he has not received a reply from Mr Kuhlewein about in over eighteen months.

[13] In cross-examination, Mr Alcorn stated that he “hires and fires” and send paperwork to head office. In answering questions from me, he agreed that on an occasion when he wished for an employee to be dismissed, he discussed it first with Mr Kuhlewein. He agreed that if Mr Kuhlewein did not wish for a driver to be dismissed, he would protest the decision, but he would follow the decision.

[14] In cross-examination he stated that he does not believe those in head office know the local area, and if a driver came from another depot to drive in Bundaberg, the driver wouldn’t be able to get through a run successfully. In answering a question from me, he said that it would take a new driver a couple of days to learn a new run and one week to be competent.

[15] Relevant to funding of new buses, Mr Alcorn stated that he is not involved in such issues, and it is discussed between Queensland Transport and the Respondent. He noted that there are two competitors in the region.

[16] Curiously, Mr Alcorn stated the following in his written evidence:

“If for some reason head office ceased to exist, the Bundaberg branch would be able to function as normal, I would be able to contact all our customers to do their quotes, complete their jobs and carry on as usual. Payment of wages may be an issue but fairly certain I would be able to sort something out as usual.”

Evidence of Mr Morgan

[17] Mr Morgan is a current employee of Coast & Country Buses and has been driving buses in the Bundaberg region for many years for different companies, and for Coast & Country Buses since at least 2011.

[18] He stated that he has very little contact with head office in Wamuran, as he is managed by Mr Alcorn. He stated:

•  Local decisions are made by the Bundaberg Depot by local people for local people;

•  His instructions come from Mr Alcorn;

•  He reports any issues to Mr Alcorn;

•  Information about changes comes from Mr Alcorn;

•  The Bundaberg Depot bus drivers refuel at local fuel stations; and

•  The Bundaberg Depot buses are serviced and inspected in Bundaberg.

Submissions of the Applicant

[19] The Bundaberg Depot is a yard of 12 bus drivers and one manager located on the outskirts of Bundaberg. The Bundaberg Depot primarily undertakes school runs, together with charters as they are appropriate for school sporting clubs and local businesses. The employees, except Mr Alcorn are casual employees covered by the Passenger Vehicle Transport Award 2020 (the Award)as Level 3 School Bus Drivers. Some buses are stored at residential properties due to remoteness from the main yard in Bundaberg.

[20] The Applicant submitted that before the COVID-19 pandemic the drivers at the Bundaberg Depot, together with Mr Alcorn were proud of the effort locally that they had put into building the business for Coast & Country Buses. The Bundaberg Depot employees accordingly expect that post-COVID-19, as things return to usual, the work will consequently return as schools resume to undertake sports events, school excursions and camps. It was submitted that it is implicit in the right to bargain collectively that the preferences of employees as to the appropriate collective should be respected unless there is some good reason under the legislation to decide otherwise.

[21] In the original application filed in B2020/147, the Applicant provided to the Commission a petition seeking to initiate enterprise bargaining signed by 10 employees of the Bundaberg Depot, together with a list of the 12 employees currently employed at the Bundaberg Depot. The Applicant submits that this group of employees to be covered by the agreement is fairly chosen, as the group is geographically, operationally and organisationally distinct from Coast & Country Buses other operations.

[22] As to the willingness of Coast & Country Buses to bargain, the Applicant wrote to Mr Kuhlewein on 25 February 2020 as follows:

“Dear Mr Kuhlewein

RE: Enterprise Bargaining Request

Under the guidelines, the employer can initiate the bargaining and agreement making process under the Fair Work Act 2009.

Another possible option is that employees or their bargaining representative (eg. Association) may approach the employer and suggest that they commence the bargaining and agreement making process.

If the employer agrees, the process can start immediately. If the employer does not agree to bargain, one option available to employees is to apply to the Commission for a majority support determination.

As you are aware, Bus and Coach Drivers Association Inc, an employee association, represents the collective group of employees in your Bundaberg division. These employees have instructed us to approach Coast & Country Buses with a view to an Enterprise Bargaining Agreement.

As a ballot, the vote of attendees was unanimous that the Association seek the agreement of the Company to start Enterprise Bargaining.

We look forward to your timely response.

Darren Dickson
Secretary
Bus and Coach Drivers Association Inc

…..”

[23] On 4 March 2020, Mr Kuhlewein responded to Mr Dickson by way of email, as below:

“Hello Mr Dickson,

Thank you for your letter of 25 February 2020. It is not my intention to commence negotiation for an enterprise agreement across our network of some 6 depots.

Our drivers are paid pursuant to the Passenger Vehicle Transportation Award and receive over award payments.

Kind regards,

…..”

[24] The Applicant seeks for the Commission to determine that the group of employees who will be covered by the proposed agreement is fairly chosen. It was submitted that the majority of employees at the Bundaberg Depot have indicated that they wish to bargain because:

•  An independent vote was conducted;

•  A petition was signed;

•  Written nominations of representation were provided;

•  Employees do not transfer from site to site or yard to yard; and

•  On the identified numbers for the depot, the petition and subsequent nomination forms identify that the majority of those who wished to be covered by the agreement, have identified themselves.

[25] The Applicant referred to the decision of Commissioner Whelan in Textile, Clothing and Footwear Union of Australia v Kennon Auto Pty Ltd 1at [17], where the Commission stated:

“Following the hearing I requested that the employer provide a list of all of the production employees at the site. A list of 45 names was produced. By comparing this with the names on the petition submitted by the union, I am satisfied that 34 production employees have signed a petition declaring their wish to collectively bargain with the employer for an enterprise agreement”.

[26] The Applicant submitted that the list supplied of all the production employees at the site as referred to by the Commissioner above is to reference the site, not the business, as is that case with the employees of the Bundaberg Depot ‘site’.

[27] The Applicant referred to the decision of the Full Bench in matter Cimeco Pty Ltd
v Construction, Forestry, Mining and Energy Union; The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 2(Cimeco) at [17], which provides:

“The legislative history of these provisions is also instructive. For example, the Workplace Relations Act 1996 (the 1996 Act) provided that collective agreements could be made covering a ‘single business’ or ‘part of a single business’. Section 322(3) of that act provided that ‘part of a single business’ included:

(a) a geographically distinct part of the single business; or

(b) a distinct operational or organisational unit within the single business.”

[28] The Applicant stated that in Cimeco, the Full Bench noted that a majority support determination could cover a single business or part of a single business. It was submitted that to provide a majority support determination in this circumstance for Bundaberg Depot of Coast & Country Buses as part of a single business would be in line with the view of the Full Bench in Cimeco.

[29] The Applicant further submitted that the Full bench in Cimeco at [14] took the view that the scope of the agreement is primarily a matter for the parties in the negotiation for an agreement, and that enterprise agreements commonly cover sub-groups of employees in the workforce [Applicant’s emphasis].

Geographically distinct

[30] With respect to the issue of geographical distinctness, the Applicant submitted that the Commission should find that the Bundaberg Depot is geographically distinct. The Applicant referred to the Commission’s Enterprise Bargaining Benchbook at page 35 which provides (in referring to the decision The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd  3) that:

“Geographical distinctness is concerned with the geographical separateness of the employer's various worksites or work locations, rather than a separation of workplaces within the same worksite.”

[31] The Bundaberg Depot has a mean average of four hours travel time in one direction to the Wamuran head office, therefore either attending the head office or vice versa is at least a full day of travel. It was submitted that they are regionally different as Bundaberg is in the Wide Bay Burnett Region, and Wamuran is in the Moreton region of Queensland.

[32] The Applicant referred to Cimeco at [18] where the Full Bench said about geographical separateness that an agreement could be made in relation to part of a business that was geographically, operationally or organisationally distinct, without any separate consideration of whether the group of employees covered by the agreement were fairly chosen. The Applicant further referred to Cimeco at [20], which states:

“It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.”

[33] The Applicant further referred the Commission to the Full Bench decision in The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd 4at [13], which says:

“It was accepted that all of the employees in question work at the BP Refinery at Kwinana. The laboratory technicians work in a laboratory building within the refinery site some 200m distant from where the operators work. Geographical distinctness under s.238(4A) is concerned with the geographical separateness of the employer’s various worksites or work locations, not a separation of a few hundred metres within the same work site.”

[34] The Applicant submitted that the Full Bench decision per the above indicates that the distance is of importance and has relevance in the matter because it is a significant distance, certainly not one that anybody would willing drive to work each day and home again. It was submitted that the statements made by the employees of the Bundaberg Depot refer to rare if any interaction between independent yards of Coast & Country Buses, and then only on specific and unusual circumstances such as the Commonwealth Games.

[35] It was submitted that the appointment at the Bundaberg Depot of a Regional Fleet Operations Manager, being Mr Alcorn, supports that the Wamuran office identified the need, due to the remoteness to have a position that had independence as well as extra authority, reporting only to the owner and Managing Director, Mr Kuhlewein.

[36] In reply submissions, the Applicant referred the Commission to the decision of Commissioner McKinnon in Australian Municipal, Administrative, Clerical and Services Union v Probe Operations Pty Ltd 5(Probe) at [7], which says:

“The group of employees is, however, geographically distinct. The employees are all ordinarily based at the Richmond call centre, while other employees performing similar work are based at other premises of Probe. Distinctiveness of this kind can be indicative that a group of employees was fairly chosen as opposed to selected by some arbitrary or unfair measure.”

[37] The Applicant submitted in summary that the Bundaberg Depot is geographically distinct because:

•  It has an individual contract for services;

•  It has a separate manager;

•  It's described to belong to a different region by the State Government;

•  Google Maps shows that it is located more than 300 kilometres from the Wamuran head office;

•  A Bus Driver requires a logbook to drive to head office under national laws; and

•  On occasion the Bundaberg Depot qualifies for a different grade of pay as per the Award.

[38] The Applicant noted that when determining whether a group of employees has been fairly chosen, the Commission may have regard to matters such as the way in which the employer has chosen to organise its enterprise and whether it is reasonable for the excluded employees to be covered by the enterprise agreement, having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the enterprise agreement.

Operationally distinct

[39] With respect to the issue of operational distinctness, the Applicant referred to the decision of Deputy President Gostencnik in National Union of Workers v ePharmacy Pty Ltd 6at [33], which says:

“Distinctiveness on one, or all, of these bases is not determinative, but will be a factor weighing in favour of a finding that the group of employees was fairly chosen.”

[40] The Applicant submitted that the Bundaberg Depot should be seen as operationally distinct as Mr Alcorn reports only to the Managing Director, and Mr Alcorn is a significant part of the Bundaberg’s stand-alone operations. It was submitted that Mr Alcorn:

•  Recruits, onboards, trains and dismisses locally;

•  Maintains a workshop facility and undertakes its vehicle maintenance;

•  Has the ability and maintains the Traffic and Main Roads Queensland (TMR) contracts for school runs locally;

•  Maintains its paperwork and supplies copies to Wamuran head office upon request;

•  Builds the charter market for Bundaberg Depot on behalf of Coast & Country Buses; and

•  Prepares and collates pays before sending to Wamuran head office for payment.

[41] The Applicant submitted that the employees at the Bundaberg Depot see themselves as being separate and distinct from the managerial and administrative employees located at the Wamuran head office site. It was further submitted that the Bundaberg Depot school bus runs are different from the school runs at any other location. Bundaberg Depot TMR contracts are controlled via Maryborough for which Mr Alcorn is a party to by way of signatory and reporting, and the Bundaberg Depot undertakes its servicing and repairs.

[42] The Applicant submitted in conclusion that by grouping multiple locations geographically remote that have little if any association with any other yards or depots and with different types of services could make it unfairly chosen.

[43] In reply submissions, the Applicant referred the Commission to the decision of Full Bench in QGC Pty Ltd v Australian Workers' Union 7(QGC) at [43]-[44], which says:

“[43] We accept the submission for the Appellant that it follows that where the group is not geographically, operationally or organisationally distinct, it is necessary to identify what, if any, factors outweigh the absence of such characteristics and to give significant weight to the lack of distinctiveness in deciding whether the group was fairly chosen.

[44] In relation to ground two of the appeal, we are of the view that the Commissioner has treated the performance of a different role, task, skill or function as operational distinctiveness and has erroneously concluded that the group of employees is operationally distinct on that basis. The term “operational” refers to an industrial or productive activity – here the operation and maintenance of gas extraction and processing infrastructure in the Surat Basin in Queensland. The term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct those operations. The fact that Gas Plant Operators and Gas Plant Lead Operators perform a different role, task or function to that performed by other operators is not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness can be made in the circumstances of the present case.”

[44] The Applicant also referred the Commission to the decision of Deputy President Clancy in Australian Municipal, Administrative, Clerical and Services Union v Shine Lawyers Pty Ltd T/A Shine Lawyers 8 (Shine Lawyers), which granted the application for a majority support determination, and provides that:

•  With respect to “operational”, Deputy President Clancy considered the “industrial or productive activity” engaged in by Shine Lawyers;

•  There is a degree of organisational distinctness inherent in Shine's branch and State structures that is not cancelled out by the level of national integration, such that it would render the choice of the relevant employees unfair (at [68] - [71]);

•  In regards to whether the employees were fairly chosen in the context of section 237(2)(c), the Deputy President observed that the choice of the Victorian employees was not arbitrary (at [73] - [86]);

•  There was no evidence, beyond an assertion, that there may be disharmony if Victorian-based employees receive different terms and conditions (at [82]);

•  There was no evidence, beyond an assertion, that granting the application for a majority support determination would have a fracturing or fragmenting effect on the national business model and have adverse commercial and operational implications (at [83]);

•  To attempt to predict what the outcome of enterprise bargaining might be if a majority support determination is made, and then to have regard to that in deciding whether such a determination would be made, would involve the FWC taking into account an entirely speculative and irrelevant consideration (at [84]);

•  In regard to whether the employees were fairly chosen in the context of section 237(2)(c), the choice of the Victorian employees was not arbitrary (at [73] - [86]);

•  There was no evidence, beyond an assertion, that there may be disharmony if Victorian-based employees receive different terms and conditions (at [82]); and

•  There was no evidence, beyond an assertion, that granting the application for a majority support determination would have a fracturing or fragmenting effect on the national business model and have adverse commercial and operational implications (at [83]).

[45] The Applicant further referred to the decision of Shine Lawyers at [42] – [46] which provides that while there were specialist departments operating over national lines, there is an appreciable difference between the “industrial or productive activity” that is conducted in Victoria when compared to other States. The main “industrial or productive activity” performed by the relevant employees is the provision of legal services (including administrative support) in Victoria concerning Victorian personal injuries practice areas, with a degree of distinctness between personal injury statutory schemes in each state. The Applicant submitted that this is pertinent from the point of view that a bus driver from Bundaberg would not know the runs of any other yards and would require the time to acquire that knowledge as the same would be said for driver coming from other yards of the Bundaberg Services.

[46] The Applicant submitted that the decisions of QGC and Shine Lawyers set out that doing the same task is not what excludes employees from being considered as fairly chosen. It was submitted that the way an employer divides the business units and the differences (such as the Victorian statues in Shine Lawyers) as is to Bundaberg Depot’s contracts, school runs or charters in this matter.

[47] The Applicant submitted in reply, noting that Coast & Country Buses raised the point of an alleged difficulty in having one depot covered by an agreement and the remaining Coast & Country Buses’ depots covered by the Award, that there is nothing before the Commission to suggest that the interests of the other yards will be adversely affected if they are unable to participate in bargaining for an agreement covering only the Bundaberg Depot employees. In support of this point, the Applicant referred to Commissioner McKinnon in Probe at [8] – [9], in which the Commissioner stated:

“[8] Probe does not favour the differentiation of terms and conditions of employment or mode of industrial regulation as between its Richmond and other call centre employees. It is strongly opposed to the creation of different terms and conditions of employment for separate groups of employees performing the same work where currently there is no distinction.

[9] Plainly, the Richmond employees have a different view and are focused on their own terms and conditions of employment as opposed to the broader alignment of conditions across the business. The call centre employees at Caulfield will be excluded from bargaining if this application is granted. However, this appears to align with their preference, having expressed only limited interest in bargaining for an enterprise agreement for the better part of 2019. There is nothing before me to suggest that their interests will be adversely affected if they are unable to participate in bargaining for an agreement covering only the Richmond employees.”

[48] The Applicant further submitted in reply that as a group, the Bundaberg Depot is operationally distinct not by the measure of the task that they do. Rather, the distinctiveness is in the form of bus driver as a regional bus service depot and the activities are distinctive because no other drivers from the other depots drive in Bundaberg.

Organisationally distinct

[49] With respect to the issue of organisational distinctness, the Applicant submitted that per the decision of GQC at [44], organisational distinctness refers to the manner in which the employer has organised its enterprise in order to conduct its operations. The Applicant submitted that the employees who wish to bargain are organisationally distinct from employees at other yards of Coast & Country Buses. It was submitted, for example, that a number of organisational tasks related to Bundaberg Depot (such as TMR contracts) are left to the Regional Fleet Operations Manager.

[50] The Applicant submitted that given the consideration that Mr Alcorn does not leave Bundaberg, he would be unknown to the population of Coast & Country Buses employees outside of the Bundaberg Depot. As a result, many of the workplaces would not follow a direction given by Mr Alcorn. It was submitted that Mr Alcorn only answers to Mr Kuhlewein. There is no equivalent position in other depots, apart from the Wamuran site, where that manager appears to be in a similar position, reporting to Mr Kuhlewein, although Mr Kuhlewein’s evidence describes different responsibilities.

Submissions and evidence of Coast & Country Buses

Evidence of Mr Kuhlewein

[51] Mr Kuhlewein is the Manager Director of Coast & Country Buses, and his family trust owns the business. His office is in Wamuran, which is within a radius of between 50 to 300 kilometres of each of the depots. Mr Kuhlewein stated that the depots are manageable from head office, and head office provides cost-efficiencies by operating out of a single office. He has never found that the distances between any of the depots has prevented effective central management.

[52] He stated that the work undertaken at each Coast & Country Buses depot is the same, being that they provide bus runs for schools with some charter work associated with the schools. Because the nature of the work is identical and the same employer processes all administrative functions, it would not be economically feasible to have separate agreements or different terms of employment apply to different depots.

[53] Mr Kuhlewein stated that the entire operation of the business is run out of the Wamuran Depot and the organisational structure and operation of the business includes purchases of all goods, all vehicles, contract negotiations, all dealings with the transport authorities and all employment issues including payroll and leave entitlements. He stated that while in some instances local supervisors complete the hiring process, nothing is formalised without head office approval. Mr Kuhlewein explained that contract negotiations for each individual contract with the transport authority (Translink) are sensitive and always undertaken exclusively by him. He noted that there are eight separate contracts in Bundaberg.

[54] Mr Chris Arklay is the Operations Manager. In each of the depots there are employees who act in a supervisory/manager capacity that report directly to himself or to Mr Arklay.

[55] In each depot the business keeps a set of recent records for that depot, due to the fact that the regulator often wishes to do audits on site, or in the case of work, health and safety, therefore it is necessary to have the records and policies at each depot site. However, a complete set of records for each depot is kept at the head office in Wamuran.

[56] There is a centralised radio communications and vehicle monitoring system fitted throughout the entire fleet at all depots, which feeds back to the Wamuran head office.

[57] Mr Kuhlewein stated that he is aware that the Applicant has attempted to reach out to other depot bus drivers through Facebook, as he has received complaints from these bus drivers about the Applicant’s conduct. The other bus drivers at other depots are not interested in the Applicant’s application.

[58] In examination-in-chief Mr Kuhlewein stated that while there had been 11 contracts at the Bundaberg Depot, there were now only eight on account of rationalisation by the department. In cross-examination Mr Kuhlewein agreed that the loss of contracts was not at all due to Mr Alcorn’s management of the Bundaberg Depot; it was simply rationalisation of routes. Mr Kuhlewein stated that he considers Mr Alcorn to be a good employee, however he does not consider that he has the company’s best interests in managing efficiencies.

Submissions of Coast & Country Buses

[59] It was noted that all bus drivers of the Respondent from all its depots are employed pursuant to the Award.

[60] It was submitted that all business functions relating to all the employee bus drivers are carried out at the head office in Wamuran, meaning all interviews for employment, all payments of wages, all pay slips, all employment inquiries, all rosters and timetables are generated out of the one office in Wamuran for the entire network. Further, all staff, who are casual employees, have identical job descriptions and have similar functions such as taking school children to and from school in buses approved by the government authority. All employees receive the same rates of pay and are under the same terms and conditions of employment.

[61] It was submitted that the conditions of approval for such a determination as set out in section 237(2)(c) and (d) of the Act have not been met in that the proposed signatories do not reflect a majority of the workforce, nor does Coast & Country Buses consider that the workforce seeks to commence negotiations. The Respondent opposes the Applicant’s position that there are geographical, operational or organisational differences that distinguish each depot region that might allow for better bargaining at separate depots.

[62] All operations are carried on from one site in Wamuran. In addition, the terms and conditions of employment at each of the depots are identical. It was submitted that any geographical difference other than the obvious relative distances between the depots has not been identified by the Applicant.

[63] It was submitted that the application does not meet the requirements of section 237(2)(c) of the Act, in that, the group of employees, who are proposed be covered by an enterprise agreement, are not fairly chosen. It was submitted that the evidence of Mr Kuhlewein confirms the organisational and operational connections between the five depot areas, which make up the transport service business of Coast & Country Buses.

[64] It was submitted that statements provided by the Applicant from drivers, especially from Mr Alcorn, confirm the operational and organisational connections between the various depots. It was contended that the evidence confirms the operational symmetry between each depot, in which the Wamuran depot is designated as head office, at which all administrative functions are performed for each depot.

[65] The Respondent operates school bus services, contracted to the Queensland Government to take school children to and from school. Each service is a separate contract with separate funding, all sourced through a single entity. There might be a number of separate contracts in each depot, for instance. But each contract other than the actual details of the service are identical. It was noted that some charter work is undertaken, however, at the moment there is no charter work due to COVID-19.

[66] In support of its submissions, Coast & Country Buses referred the Commission to the decision of Commissioner Roe in National Union of Workers v Cotton On Group Services Pty Ltd 9 (Cotton On) at [14], in which the Commissioner stated, in discussing areas which might be considered operationally distinct:

“I am satisfied that factors such as different shift patterns, different rates of pay, and different methods of utilisation of casuals suggests operational distinctiveness particularly given that these characteristics may be relevant in bargaining.”

[67] Coast & Country Buses submitted that the evidence of its business operations overwhelmingly supports the contrary view to the Commissioner’s decision above.

[68] It was further submitted that the Commissioner had considered at [29] of the same decision that evidence that other employees might not seek to bargain was a relevant factor to consider. It was submitted that the evidence of the Respondent is that the attempts by the Applicant to contact drivers at the Kingaroy depot on Facebook had resulted in no support for a majority determination.

[69] Coast & Country Buses submitted that the Applicant has provided no evidence to suggest that the Bundaberg Depot is in fact geographically, organisationally, or operationally distinct. It requested the Commission dismiss the application.

Consideration

[70] Relevant to the capacity of the Applicant to make an application under s.236 of the Act, I am satisfied that pursuant to s.236(1) of the Act it is a bargaining representative of at least one employee who will be covered by a proposed enterprise agreement. The application meets the requirements of s.236(2) of the Act.

[71] Relevant to whether a majority of employees at the Bundaberg Depot wish to bargain with Coast & Country Buses for an enterprise agreement to cover their work from the Bundaberg Depot, I am satisfied that a majority of those employees have signed a petition between 3 and 5 March 2020 nominating that they wish to bargain with their employer. I am satisfied that s.237(2)(a) of the Act is met.

[72] I am satisfied that Coast & Country Buses has not yet agreed to bargain, or initiated bargaining for the proposed agreement, and accordingly s.237(2)(b) is met.

Was the group of employees fairly chosen?

[73] On account of the Applicant seeking only to bargain for employees at the Bundaberg Depot, and that not being all of the employees of the Respondent, it is necessary to determine, pursuant to s.237(3A) if the group of employees, the bus drivers at the Bundaberg Depot was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct.

[74] Disappointingly, the Applicant at [27], [28] and [32] of this decision, in its written submissions did not properly grasp what the Full Bench in Cimeco stated. The Full Bench went on to say, in differentiating the test in the Workplace Relations Act 1996 and the test under the present Act:

“[17] The legislative history of these provisions is also instructive. For example, the Workplace Relations Act 1996 (the 1996 Act) provided that collective agreements could be made covering a ‘single business’ or ‘part of a single business’. Section 322(3) of that act provided that ‘part of a single business’ included:

“(a) a geographically distinct part of the single business; or

(b) a distinct operational or organisational unit within the single business.”

[18] Hence, under the 1996 Act an agreement could be made in relation to a part of a business that was geographically, operationally or organisationally distinct, without any separate consideration of whether the group of employees covered by the agreement were fairly chosen.

[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.”

[75] Clearly, the Full Bench was detailing a difference between the two Acts, noting that under the earlier Act the consideration of fairly chosen was not present.

Geographically distinct

[76] The group of bus drivers at the Bundaberg Depot typically only perform work from the Bundaberg Depot, and they are not asked to operate out of the other depots. This is so, despite the Childers Depot being only approximately 45 minutes away by vehicle. There was no evidence that the three drivers from the Childers Depot and the 12 drivers from the Bundaberg Depot have any interaction or perform work for the other’s depot. The other depots, and head office are a significant distance away.

[77] Whilst the Bundaberg Depot reports into and operates as an arm of the entity, controlled from the ‘parent’ head office, I am satisfied that it is geographically distinct from all of the other depots and from head office.

Operationally or organisationally distinct

[78] I have no hesitation in stating that Mr Alcorn’s evidence as to the ability of the Bundaberg Depot to stand-alone and operate outside of head office control was extraordinarily overstated and factually incorrect. The Bundaberg Depot is simply one other depot within Coast & Country Buses. It is not special or unique. Mr Alcorn’s experience as a Regional Operations Manager assists the Respondent meet its organisational requirements, and Mr Alcorn largely gets on with the job without much fuss. He does not require extensive instruction or supervision from head office in his management of the Bundaberg Depot and management of the bus drivers.

[79] While other depots within the Respondent might call upon external providers to service the vehicles, Mr Alcorn’s experience allows a great deal of servicing to be done in-house. He is, no doubt, rewarded appropriately.

[80] The Bundaberg Depot bus drivers perform the same work as the bus drivers at the other depots. The only variance is the streets upon which they drive and the schools and various clubs they service. Mr Alcorn’s evidence when questioned by me is that an outsider could competently perform a set route within a week, and would otherwise have some knowledge of the route within a number of days. Whilst operating a school bus or a charter bus requires a particular set of skills, it is the same set of skills across all of the Respondent’s bus drivers.

[81] Mr Alcorn’s evidence included that in 2014 he set up a Facebook page demonstrating the local services that could be provided by the Respondent out of the Bundaberg Depot. A direction was made a very short time ago to hand the Facebook page to head office. If Mr Alcorn had as much authority over what he considers to be an operationally and organisationally distinct part of the business, it would be expected he would put to head office greater resistance. He did not, because it is clear that head office and Mr Kuhlewein makes decisions for and on behalf of all of the business.

[82] I consider Mr Alcorn’s evidence at [16] to be extraordinarily naïve. The Bundaberg Depot could not continue to operate if head office, for some reason, didn’t exist. A substantial sum of capital is required to operate a bus company operating out of five depots with 58 drivers. Mr Kuhlewein’s evidence is that a bus typically costs around $400,000, and a coach up to $550,000 to purchase. No doubt there would be finance involved in the purchase of such large expenses, together with all of the other various costs required to run such a business. Rent on the Bundaberg Depot premises, or ownership of the property on which it operates is one obvious consideration. The Queensland Transport has decided to award a number of contracts to the Respondent, clearly because Queensland Transport considers that the Respondent can meet its obligations to service the contract. The Bundaberg Depot alone cannot meet the Respondent’s requirements to Queensland Transport. Mr Alcorn agreed in evidence that head office pays the invoices of the various costs the business must meet.

[83] It was Mr Khulewein who registered the Respondent recently for JobKeeper payments to employees, and who made decisions to continue the employment of casual bus drivers during the recent closure of schools. While Mr Khulewein held discussions with Queensland Transport to retain payments for school-runs, the business was significantly affected by the loss of charter work, making the business eligible for JobKeeper. Eligible drivers have been in receipt of the $750 per week JobKeeper payments on account of the Respondent’s decision to register for JobKeeper. A significant number of those drivers, casually employed, typically earn far less than $750 per week, and therefore, during the period they are in receipt of JobKeeper payments, they are in receipt of increased amounts. These amounts are first paid by the Respondent to employees, and a period of time later, the Respondent receives payment from the ATO. Naturally there is some lag in receipt of the payments by the Respondent from the ATO; financed by the Respondent.

[84] Disappointingly, it appears to me that Mr Alcorn has, in pursuit of attempting to bring his employer to the table to bargain for the benefit of drivers at the Bundaberg Depot, made disturbing and demonstrably false assertions relevant to the ability of the Bundaberg Depot to “go it alone” without head office interference. His loyalty to the employees he supervises is to be commended; his absurd and blinkered assertions are not.

[85] I am not satisfied that the bus drivers at the Bundaberg Depot are operationally or organisationally distinct.

Distinctness

[86] Most recently, the reasoning in Cimeco was adopted by the Full Bench of the Commission in QGC in the context of s.237(2)(c) of the Act: 10

“[42] For the Commission to reach a state of satisfaction necessary to make a majority support determination, it must be satisfied that the group was fairly chosen and in considering whether the group was fairly chosen, it must take into account, by virtue of s. 237(3A), whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.”

[87] Having regard to the above authority, whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive; rather it is a matter to be given due weight, having regard to all other relevant considerations.

[88] It appears to me that it is possible, in determining whether the group of employees who will be covered by a proposed agreement was fairly chosen, that even after determining that the group is either geographically, operationally or organisationally distinct, or more than one, the Commission can decline to make a majority support determination.

[89] I have had regard to the evidence before the Commission that attempts have been made by the Applicant to understand if any other drivers at other depots hold an interest in supporting the Bundaberg Depot drivers in pursuing bargaining with the Respondent. It appears that there is no such interest.

[90] The Respondent does not wish to bargain with its employees at the Bundaberg Depot, as it does not wish to have disparate terms and conditions among its employees at various depots. It does not consider that there is a distinction to warrant varying terms and it would be burdensome to have varying terms and conditions across its workforce.

[91] Conversely, the Bundaberg Depot drivers are strongly focussed on their own terms and conditions of employment and do not consider it necessary to have regard to the terms and conditions that apply to employees of other depots, with whom they have no interaction.

[92] While I have had regard to the Respondent’s evidence that a great deal of the administrative functions relevant to the Bundaberg Depot’s drivers is carried out at head office, including the payment of wages, pay slips, employment inquiries, rosters and timetables, etc., this would be true whether the employees are employed pursuant to the Award or to an enterprise agreement.

[93] Having regard to my finding that the Bundaberg Depot is geographically distinct, and the strong desire of the employees at that depot to bargain with their employer, I am satisfied that the employees to be covered by the proposed agreement was fairly chosen. Accordingly, s.237(2)(c) is met.

Whether reasonable in all of the circumstances to make the determination

[94] Where VP Watson stated in Australian Licensed Aircraft Engineers Association v Panasonic Avionics Corporation 11 that if all other criteria in 237(2) are satisfied he does not consider that there is any reason why a determination should not be issued, I note that the consideration relevant to s.237(2)(d) was not in issue in that case. It was not a contested issue, and respectfully, there is indeed work for appropriate consideration of whether it is reasonable in all the circumstances to make a determination even if the other criteria have been satisfied.

[95] I consider Commissioner Simpson’s consideration in Monadelphous 12 to be persuasive. If an employer does not hold any objections relevant to s. 237(2)(a), (b) or (c), any objections an employer holds relevant to s.237(2)(d) must be properly considered, with the onus falling upon the applicant to satisfy the Commission that it is reasonable in all the circumstances to make the determination. An application could be refused on failing to satisfy the Commission relevant to s.237(2)(d) alone. It carries as much weight as the other considerations.

[96] One might wonder what it might take for the Commission to conclude that it is not reasonable in all the circumstances to make the determination? Commissioner Simpson found so in Monadelphous. It is clear that it will depend on the evidence in each particular case.

[97] Whilst I consider that it would be of some difficulty for the Respondent to commence bargaining at a time unlike no other, where a significant piece of its business has been temporarily reduced due to the COVID-19 crisis, that being its charter business, any delay to bargaining, by not making the determination as sought would not be justified. There might never be a ‘good’ time to bargain, as the business seeks to rebuild its charter business and resumption of school sporting and excursion activities increases.

[98] Of course, a determination being made does not necessarily result in a bargain being reached by the parties; it imposes obligations to bargain in good faith. A large proportion of parties who commence bargaining will reach a bargain. A majority of the Bundaberg Depot drivers desire this at this point in time, and I consider it reasonable in all the circumstances to make the determination. Accordingly, s.237(2)(d) is met.

Conclusion

[99] I am satisfied that a majority of the relevant employees who will be covered by the proposed agreement wish to bargain for an enterprise agreement. I am also satisfied that each of ss.237(2)(b), (c) and (d) have been met. Pursuant to s.237(1) I must make a majority support determination which will operate from 2 July 2020.

[100] A Determination will issue with this decision (PR720698)

COMMISSIONER

Appearances:

D Dickson, for the Applicant.
I MacDonald, of the for the Respondent.

Hearing details:

4 June 2020, Brisbane (by Telephone).

Printed by authority of the Commonwealth Government Printer

<PR720320>

 1   [2009] FWA 1377.

 2   [2012] FWAFB 2206.

 3   [2014] FWCFB 1476.

 4   Ibid.

 5   [2020] FWC 2702.

 6   [2015] FWC 3819.

 7   [2017] FWCFB 1165.

 8   [2017] FWC 4158.

 9   [2014] FWC 6601, see [2014] FWCFB 8899 for appeal of [2014] FWC 6601.

 10   QGC Pty Ltd v The Australian Workers’ Union[2017] FWCFB 1165 at [42].

 11     [2013] FWC 4267.

 12   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Monadelphous Engineering Associates Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Monadelphous Engineering Associates Pty Ltd [2018] FWC 3081.