Busways Pacific Pty Limited T/A Busways
[2024] FWCA 4496
•16 DECEMBER 2024
| [2024] FWCA 4496 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Busways Pacific Pty Limited T/A Busways
(AG2024/3633)
BUSWAYS PACIFIC DRIVERS ENTERPRISE AGREEMENT 2024
| Passenger vehicle transport (non rail) industry | |
| COMMISSIONER MCKINNON | SYDNEY, 16 DECEMBER 2024 |
Application for approval of the Busways Pacific Drivers Enterprise Agreement 2024
Busways Pacific Pty Ltd (Busways) has applied for approval of a single enterprise agreement known as the Busways Pacific Drivers Enterprise Agreement 2024 (the Agreement). The Transport Workers’ Union of Australia (TWU) is a bargaining representative for the Agreement and seeks to be covered by its terms. The application is opposed by employee bargaining representative, Mr Andrew Paul.
Mr Paul submits that the Agreement should not be approved on multiple grounds including because it does not pass the better off overall test; has not been genuinely agreed; and documents filed in support of the application are affected by errors or omissions or are otherwise unreliable. I deal with each in turn.
Was the Agreement genuinely agreed?
Mr Paul submits that the Agreement was not genuinely agreed because drivers were not given an express explanation in relation to the effect of clause 8.5, which provides that certain Agreement clauses (part time employees, hours of employment, overtime, shift penalties/allowances, weekend work, rostered days off and fixing times) do not apply to casual employees.
I accept that no express explanation of this type was included in the explanatory material provided with the Agreement. However, I am not persuaded that this was a deficiency in the agreement-making process or that it has the result that the Agreement has not been genuinely agreed. The explanatory document is one part of the set of information given to employees so that they can make an informed decision. The terms of clause 8.5 are clear on the face of the Agreement and are identical to clause 8(e) of the Busways Pacific Fair Work Agreement 2020 (the current agreement), which has applied to affected employees since 21 April 2021. It is not to the point that not all casual bus drivers were employed when the current agreement was made in 2021. Employees employed since that time were employed under the current agreement and have had the benefit of its terms and conditions from the commencement of their employment. It is reasonable to infer that they have at least a general understanding of how they are paid under the agreement because they have the benefit of its terms and conditions each pay cycle.
The apparent reason for the exclusion of casual employees from the terms listed in clause 8.5 of the Agreement is that those terms either do not apply to casual employees or they overlap with the entitlements of casual employees found in clause 8 of the Agreement itself. The explanatory document states that clause 8 is “broadly consistent with the clause contained in the current 2020 EA” except for a change to minimum engagement periods. It is not necessary for every detail of an enterprise agreement to be summarised in explanatory form to ensure that it can be genuinely agreed. Where one enterprise agreement is proposed to replace another, it will generally be sufficient to explain the differences between the agreements and any differences between the proposed agreement and relevant modern award terms that have been varied since the Agreement was made. The contents of the explanatory document must be read as a whole. They are neither false nor misleading.
It follows that I do not accept that failing to expressly refer to clause 8.5 in the explanatory document “proports [sic] to offer casuals entitlements for which they are not entitled to”. Nor do I accept that it would have been either simple or a necessary reasonable step to cancel the vote, correct the asserted omission, and then reschedule the vote to a later time when this was requested by Mr Paul two days before the end of the access period.
A Notice of Employee Representational Rights was issued to all relevant employees. The notice was not in the prescribed form, because an earlier version of the prescribed form was used inadvertently. I am satisfied that this was a minor technical error and that no employee is likely to have been disadvantaged by the error having regard to the limited nature of the changes as between forms.
The Agreement was negotiated over a period of almost 10 months between Busways, the Transport Workers’ Union and employee bargaining representatives. Once bargaining concluded, employees were given access to a copy of the Agreement and two explanatory documents from 15 August 2024. The explanatory documents explained the effect of the Agreement compared to the Award and the current agreement, as well as changes from the old to new Agreement. Busways also provided employees with access to a phone and email “EA Information Line” from 15-30 August 2024 and invited them to attend information sessions in person between 16 and 22 August 2024. A total of 13 sessions were held at the various depots covered by the Agreement. The Agreement and explanatory material is relatively comprehensive but also expressed in plain language.
Employees had a reasonable opportunity to vote on the Agreement in a free and informed manner, starting with an emailed letter on 15 August 2024 with information about the time, place and method of the vote, and a How To Vote user guide. Voting opened on 26 August 2024 and closed on 30 August 2024 and was conducted by Vero Voting (an agent the Commission has separately found to be a “fit and proper person” to act as an eligible protected action ballot agent). The vote was conducted confidentially by SMS and Phone. Employees who were eligible to vote on the Agreement are all bus drivers and accordingly had a sufficient interest in its terms. Of a total eligible 340 employees (including 273 casual employees who were employed during the access period and immediately prior to the commencement of voting), 268 cast a valid vote and 137 voted to approve the Agreement, representing a slim but valid majority of 50% + 3. In my view, all casual employees who participated in the vote were eligible to do so because they had an established and ongoing employment relationship with Busways. If I am wrong about that, and 3 employees on long leave at the relevant time for medical reasons should not have voted on the Agreement, nothing turns on it because the outcome would still have been a majority vote in favour of the Agreement.
The Transport Workers’ Union supports the Agreement and does not have concerns that the Agreement was not genuinely agreed to by the employees covered by the Agreement. This carries significant weight.[1]
In the circumstances, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement.
Was the group of employees fairly chosen?
The Agreement covers bus drivers employed by Busways in New South Wales. These drivers are covered by an existing enterprise agreement[2] that only covers bus drivers performing bus driving work in New South Wales. The Agreement does not cover maintenance and administrative employees. I accept that the group of bus drivers is an operationally distinct group of employees within the business.
The issue raised by Mr Paul is that “driver trainers” are not covered by the Agreement. So much is accepted by Busways. It submits that driver trainers have not historically been covered by the same enterprise agreement as bus drivers. It also submits that driver trainers are employed by a different employer.
Only “the employees of” the employer that is covered by a proposed agreement can make an enterprise agreement with the employer (Act, s.182(1)). Scope is a matter for bargaining and coverage of driver trainers was raised by Mr Paul in bargaining. An application for scope orders was squarely in contemplation by Mr Paul but never made. And the outcome of bargaining, apparent on the face of the Agreement, is that the only employer covered by the Agreement is Busways. Driver trainers could accordingly not be covered by the Agreement. I am satisfied that the group of employees was fairly chosen.
Forms submitted in connection with the agreement approval application
There are two limbs to this challenge. The first is that the Form F16 is inaccurate. The second is that the Form F17B was not completed as required.
In relation to the Form F16, it appears that the issue is Busways having answered ‘No’ to the question about whether there were any bargaining representatives for the employer. 4 managerial employees of Busways were in fact formally ‘appointed’ as its bargaining representatives. However, it was not necessary for these employees to be appointed separately as bargaining representatives for Busways. Busways was a bargaining representative for itself. The employees simply gave voice to the position of Busways as they had been tasked to do.
In relation to the Form F17B, Mr Paul submits that Busways failed to adequately answer questions 10 – 14 by failing to indicate whether all or only some of the employees were affected by improvements and reductions in the Agreement, and if only some, failing to identify the groups of employees affected. Mr Paul also submits that Busways failed to adequately answer question 15 by not elaborating on its view that the Agreement passes the better off overall test.
The consequence, according to Mr Paul, is that the Transport Workers’ Union and employee bargaining representatives were unable to properly form their own view about whether the Agreement passed the better off overall test. I reject this submission. Ultimately, whether an enterprise agreement passes the better off overall test is a matter for the Commission. It is not necessary for the parties to have a concluded view on the question but if they do, this can help inform the Commission’s deliberations. Further, if there is a common view that an enterprise agreement passes the better off overall test as between an employer and employee organisation, the view must be given primary consideration.[3] The Union’s view, which is formed independently of what Busways might have set out in its Form F17B and expressed in the Form F18, carries weight. Mr Paul has also plainly formed a view on the question because he objects to approval of the Agreement including on that basis.
The concern in relation to questions 10-14 arises from guidance on the Form F17B which says this:
“Your answers to questions 10-14 (inclusive) should indicate whether all or only some of the employees are affected and, if only some employees are affected, identify the groups of employees affected. Include relevant clause numbers. You may provide a consolidated response to questions 10–14 in a separate attachment.”
The purpose of this guidance is to assist parties in completing the form. It is not in the nature of a binding rule about the content that must be provided before an agreement approval application can be approved. This is reinforced by the use of facilitative language, such as “should” and “may”. The guidance also indicates that a consolidated response can be provided in a separate attachment. This was the approach adopted by Busways by its separate provision of explanatory material in relation to the Agreement and relevant cross-references in connection with the application for approval.
The concern in relation to question 15 relates to an instruction on the Form F17B which says this:
“Referring to your answers to questions 8 to 14, explain why the employer is of the view the agreement does or does not pass the better off overall test.”
Busways did not provide an explanation of this kind in the space provided on the form. The omission is not fatal to the agreement approval application. All it means is that I may have needed to make additional enquiries of Busways to satisfy myself in relation to the better off overall test. As things transpired, Busways responded to the concerns raised by Mr Paul by providing the ‘missing’ information in an ‘aide memoire’ on 5 November 2024. Any relevant deficiency in the information contained in the Form F17B at the time the form was filed was thus cured by 5 November 2024 when the information was put before the Commission. In relation to questions 10-15, the same information was also contained in the Agreement.
Bargaining in good faith
This is not a relevant consideration. As noted above, no scope order was sought or made in relation to the Agreement.
The better off overall test
Mr Paul submits that the Agreement does not pass the better off overall test when compared with the Passenger Vehicle Transportation Award 2020 (the Award).
Classification of drivers under the Agreement
Busways submits that the drivers covered by the Agreement are in grades 3 and 4 under the Award. Mr Paul submits that these grades do not accurately reflect the work performed by Busways drivers and that they ought to be compared with grade 5 for the purposes of the better off overall test. Alternatively, Mr Paul submits that in the “very near future” drivers will be classified as ‘grade 5’ under the Award because of their participation in a new proposed mentor driver trainer program. In support of his submission, Mr Paul relies on a document titled “Mentor Program Weekly Checklist V4 04012022”, which appears to be a checklist signed by a “Mentor” and an employee. The employee then signs the checklist to confirm that they are aware of and have been trained in each of the elements identified in the form, being sign off procedures, route training and fleet familiarisation.
The classification of drivers was dealt with by the Full Bench in Appeal by Paul.[4] Its findings are not altered by the tender of the Mentor Program Weekly Checklist in this proceeding. It is a bare document prepared in January 2022, approximately 2.5 years before the Full Bench decision. No error in the factual findings made by the Full Bench, after reviewing detailed evidence on the matter, is apparent from a review of the document.
Mr Paul gave evidence in the earlier proceeding about bus drivers performing duties of the kind reflected in the checklist. This evidence was supplemented by evidence from Busways about its “buddy” system of pairing new and existing drivers for an initial two-week period. The Full Bench accepted that drivers may infrequently perform higher duties in the form of on-the-job training but was satisfied that the appropriate classification for drivers covered by the Agreement was Grade 4 (and Grade 3 for those only transporting school children). The findings of the Full Bench pertained to the current agreement, rather than the Agreement now under consideration. However, the coverage of each enterprise agreement is the same. I adopt the findings of the Full Bench and am satisfied that the appropriate classifications for the purpose of the better off overall test to be Grades 3 and 4 in the Award. The result is, as Mr Paul accepts, that employees will be better off under the Agreement.
The better off overall test is applied at the time when the Agreement is made (the “test time”) having regard to all that is known at that time. It is neither relevant nor appropriate to engage in speculation about whether this position may change in the future such that, had the test been applied at a different time, employees may not be considered better off overall.
Travelling time and living away from home allowance
These matters were considered by the Full Bench in Appeal by Paul, which found that bus drivers covered by the Agreement are under no obligation to accept work outside of their base location and that the absence of provision for reimbursement of private vehicle expenses in the Agreement was “not a significant detriment to be taken into account as part of the global assessment under the better off overall test”.[5] Similar findings were made in relation to living away from home allowance. I give the matters limited weight in the overall assessment of the better off overall test.[6]
Casual minimum and ‘two’ engagements
Mr Paul submits that casual employees working separate short shifts in a single day could not be considered better off overall under the Agreement because the minimum engagement periods are less than those in the Award. This matter was also considered before the Full Bench in Appeal by Paul. The Full Bench drew a distinction between the “minimum payment for each portion of a broken shift” and a “minimum engagement” for employees working solely as school bus drivers. Further, the Full Bench found that casual employees were likely to work at least 4 hours (as opposed to the minimum engagement of 2.1 hours) under the Agreement, and that the superior wage rates and other benefits in the Agreement outweighed detriments compared to the Award. I adopt these findings of fact, which are a relevant indicator of foreseeable work patterns derived from actual rostered work in February and March 2024.
Coverage, terms and conditions for cleaners
The Agreement does not cover employees engaged as cleaners. As noted above, the appropriate comparators for the purposes of the better off overall test are Grades 3 and 4 of the Award.
Lack of clarification about the ‘sign on – sign off’ policy
Mr Paul submits that the current policy on its face requires employees to undertake unpaid work after sign-off. This is a question of implementation, rather than application, of the Agreement. It is not a relevant consideration for the purposes of the better off overall test.
Lack of clarification about meaning of “work” and “overtime”
Mr Paul submits that the Agreement needs a new clause detailing exactly what constitutes work and overtime under the Agreement. This is a matter for bargaining and/or interpretation of the Agreement if a dispute arises in the future. It is not a matter that falls for consideration in relation to whether the Agreement can and must be approved.
Other issues in relation to the better off overall test
I raised a concern with Busways about how likely it was for casual employees to regularly work shifts before 6.00am and after 7.00pm because of a lower shift penalty applying to work at these times. Busways provided an analysis of roster patterns which satisfies me that work outside this span is an uncommon feature of the work of its bus drivers. On balance, the potential detriment compared to the Award carries limited weight.
I also asked Busways about undertakings given in relation to the current agreement, and whether the concerns they had sought to address were subsequently remedied by substantive terms of the Agreement. I am satisfied that most of the issues are resolved by substantive terms of the Agreement. One provision, relating to the averaging of hours, is not dealt with in the Agreement proper. Instead, it is the subject of an undertaking which I accept to remedy the concern.
Conclusion in relation to the better off overall test
Some of the provisions of the Agreement are less beneficial than comparable terms in the Award, including in relation to span of hours, casual minimum engagements, travelling time and living away from home allowance. Equally, some of the provisions of the Agreement are more beneficial, including higher rates of pay and attendance allowance.
The Fair Work Act 2009 (Cth) (Act) requires primary consideration to be given to a common view about whether the Agreement passes the better of overall test as between Busways and the TWU.[7] The common view in this case is that the Agreement passes the better off overall test.
My own analysis aligns with the common view of Busways and the Transport Workers’ Union that on balance, and with the undertaking now given, the Agreement passes the better off overall test.
Conclusion
I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement is approved and will operate from 23 December 2024. The nominal expiry date of the Agreement is 30 June 2027.
A written undertaking has been given in accordance with section 190 of the Fair Work Act 2009 (Act) and is attached at Annexure A. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.
The model consultation term is taken to be a term of the Agreement.
The Agreement covers the Transport Workers’ Union of Australia.
COMMISSIONER
Annexure A
[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
[2] AG2020/4229 Busways Pacific Fair Work Agreement 2020.
[3] Fair Work Act 2009(Cth), s.193A.
[4] [2024] FWCFB 369 at [131] – [135].
[5] [2024] FWCFB 369 at [147].
[6] [2024] FWCFB 369 at [150].
[7] Act, s.193A.
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