Dolphin Express Pty Ltd - [2016] FWCA 656

[2016] FWCA 656

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Dolphin Express Pty Ltd

(AG2016/82)

DOLPHIN EXPRESS PTY LTD ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non- rail) industry

DEPUTY PRESIDENT BULL

SYDNEY, 9 FEBRUARY 2016

Application for approval of the Dolphin Express Pty Ltd Enterprise Agreement 2016

[1] An application has been made by Dolphin Express Pty Ltd (the applicant) for the

approval of an enterprise agreement known as the Dolphin Express Pty Ltd Enterprise

Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair

Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement is proposed to cover 6 casual and part-time employees who are

engaged in the provision of car transport to and from school for disabled children as part of

the NSW assisted school travel program. Pursuant to s.186(3) of the Act, I am satisfied that

the group of employees was fairly chosen based on the operational distinctiveness of the

proposed coverage.

[3] In its application, the applicant stated that the Agreement passes the better off overall

test (BOOT) as required under s.186 of the Act. In the event that the Agreement was not

approved under s.186 of the Act, the applicant sought approval of the Agreement under s.189

of the Act, on the ground that because of exceptional circumstances, approval would not be

contrary to the public interest.

Better off overall test (BOOT)

[4] The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant

reference instrument with respect to the better off overall test (BOOT) as required under s.186

of the Act.

[5] The rates of pay and relevant entitlements are as per the Award. However, as noted in

the employer’s statutory declaration (F17), the Agreement entitles part time employees to a

reduced two hour minimum payment per engagement, in comparison to three hours under the

Award.
[2016] FWCA 656

[6] In support of the application, the applicant states that the Agreement provides more

beneficial terms than the Award by providing employees with :

a)	Wherea student is absent for up to five daysin any one absenteeism period,

employees will be continued to be paid; and

b)	The work vehicle is used by the employees to travel to and from work at no cost to the

employee.
[7] Taking into account the rates of pay and other entitlements are only equivalent to that

of the Award, and factoring in a reduced minimum payment per engagement for part time

employees, I am not persuaded that the benefits conferred by the Agreement means that

employees are better off under the Agreement. As such, I am not of the view that the

Agreement satisfies the better off overall test as required under s.186 of the Act.

s. 189(2) of the Act

Exceptional circumstances

[8] As submitted in the alternative, should the Commission not be satisfied that the

Agreement meets the BOOT, there was a public interest in the Agreement being approved

pursuant to…

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: Dolphin Express Pty Ltd [2016] FWCA 656
Case: [2016] FWCA 656
Decision Date: 9 February 2016

CaseChat Overview and Summary

In Dolphin Express Pty Ltd, Deputy President Bull considered an application for the approval of an enterprise agreement covering casual and part-time employees engaged in providing car transport to and from school for disabled children. The applicant, Dolphin Express Pty Ltd, argued that the proposed agreement, which provided less favourable terms than the applicable award, would not be contrary to the public interest and should be approved under the exceptional circumstances provision of the Fair Work Act 2009. The Deputy President found that the proposed agreement did not satisfy the better off overall test but determined that the time limitations imposed on the transportation of children to and from school constituted exceptional circumstances. As a result, the Deputy President approved the agreement under section 189 of the Fair Work Act 2009, finding that its approval would not be contrary to the public interest given the critical community service provided by the applicant.

The main legal issues in this case were whether the proposed agreement satisfied the better off overall test and, if not, whether it could be approved under the exceptional circumstances provision of the Fair Work Act 2009. The Deputy President found that the agreement did not satisfy the better off overall test because it provided less favourable terms than the applicable award. However, the Deputy President determined that the time limitations imposed on the transportation of children to and from school constituted exceptional circumstances. As a result, the Deputy President approved the agreement under section 189 of the Fair Work Act 2009, finding that its approval would not be contrary to the public interest given the critical community service provided by the applicant.

Orders