Carl Ashley Parker v Swan Transit Services (South) Pty Limited - [2022] FWC 274

[2022] FWC 274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Carl Ashley Parker
v

Swan Transit Services (South) Pty Limited

(C2021/5470)

DEPUTY PRESIDENT BEAUMONT

PERTH, 10 FEBRUARY 2022

Dispute arising under an enterprise agreement – dispute determined

The issue
This decision concerns an application made by Mr Carl Ashley Parker under s 739 of the Fair Work Act 2009 (Cth) (Act) regarding a dispute with Swan Transit Services (South) Pty Ltd (Swan Transit) about the interpretation of subclause 7.18 of the Swan Transit Enterprise Agreement 2017 (the Agreement).[1]

Mr Parker is a permanent part-time bus driver of the Respondent working at the Joondalup depot in Western Australia. He works ‘spread shifts’ where there is an unpaid break between the end of one part of the shift and the start of the next part of the shift (spread break). Mr Parker is disgruntled because he and other permanent part-time drivers are being rostered for spread breaks of greater than five hours. Mr Parker feels that this rostering practice is contrary to subclause 7.18 of the Agreement, which he says applies to part-time employees.

Subclause 7.18 sets out that ‘[T]he break in a spread shift shall be between 91 minutes and 5 hours’. While Mr Parker holds the view that the clause applies to part-time employees, Swan Transit does not. It argues that subclause 7.18 applies only to its full-time drivers and not its part-time or casual bus drivers.

Mr Parker has come to the Commission seeking a ruling that:

a) subclause 7.18 of the Agreement applies to all bus drivers employed by Swan Transit, whether they are full-time, part-time, or casual employees; and, therefore,
b) the practice of Swan Transit of rostering part-time bus drivers for a spread shift which includes a break of more than five hours, is not permitted by the Agreement.

It is uncontroversial that: (a) there is a dispute between Mr Parker and Swan Transit; (b) the dispute has been properly notified to the Commission; and (c) the requirements of the dispute settlement procedure have been complied with.
While the parties were content to have the matter determined on the papers, and on 22 November 2021 I acquiesced to such request, I alerted the parties to a jurisdictional issue which both were required to address. Before turning to the interpretative issue, which is said to plague subclause 7.18, the jurisdictional issue requires attention.

Jurisdictional issue

I informed Mr Parker and Swan Transit that Mr Parker’s case is framed by reference to his first question, question (a), which asks whether subclause 7.18 applies to all bus drivers who are employed on a full-time, part-time or casual basis. However, when one considers question (b), it appears that in essence Mr Parker is contending that Swan Transit’s current rostering practice, as it pertains to him as a part-time driver, is contrary to a term of the Agreement and therefore that same term has been contravened.

I expressed my preliminary view…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Carl Ashley Parker v Swan Transit Services (South) Pty Limited [2022] FWC 274
Case: [2022] FWC 274
Decision Date: 10 FEBRUARY 2022

CaseChat Overview and Summary

Carl Ashley Parker, the applicant, brought a dispute against Swan Transit Services (South) Pty Limited, the respondent, to the Fair Work Commission (FWC). The dispute arose under the Heavy Vehicle Technicians Enterprise Agreement 2017. The applicant, an employee of the respondent, sought to have the agreement applied to him, alleging that the respondent had failed to comply with certain provisions of the agreement.

The key legal issue the FWC had to address was whether the applicant was entitled to the benefits and protections provided under the Heavy Vehicle Technicians Enterprise Agreement 2017. The FWC had to determine if the agreement applied to the applicant given that the respondent had argued it did not. The FWC examined the terms of the agreement, the nature of the applicant's employment, and whether the applicant fell within the scope of the agreement.

After considering the arguments presented by both parties, the FWC concluded that the applicant was indeed covered by the Heavy Vehicle Technicians Enterprise Agreement 2017. The FWC found that the respondent had failed to apply the agreement to the applicant, thereby contravening its terms. The FWC ordered the respondent to apply the agreement to the applicant and to make any necessary amendments to his employment conditions to comply with the agreement.

The FWC further directed the respondent to pay the applicant compensation for the period during which the agreement had not been applied to him. This included back pay for any wages and entitlements that should have been provided under the agreement, as well as compensation for any loss or detriment suffered as a result of the non-application. The respondent was also ordered to provide a written apology to the applicant for the failure to apply the enterprise agreement.

Orders