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 s.189 of the Act.

[9]        The Commission is not of the view that the Agreement satisfies the BOOT. It is

therefore necessary to consider whether the Agreement can be approved under s.189 of the

Act, on the basis that because of exceptional circumstances, approval of the Agreement would

not be contrary to the public interest.

[10]      Section 189 of the Act provides instances when the FWC may approve an enterprise

agreement that does not pass better off overall test with regard to the public interest test:

“ (1) This section applies if:

(a) the FWC is not required to approve an enterprise agreement under

section 186; and

(b) the only reason for this is that the FWC is not satisfied that the

agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

(2) The FWC may approve the agreement under this section if the FWC is

satisfied that, because of exceptional circumstances, the approval of the

agreement would not be contrary to the public interest.

(3) An example of a case in which the FWC may be satisfied of the matter

referred to in subsection (2) is where the agreement is part of a reasonable

strategy to deal with a short-term crisis in, and to assist in the revival of, the

enterprise of an employer covered by the agreement.”

[2016] FWCA 656

Nominal expiry date

(4) The nominal expiry date of an enterprise agreement approved by the FWC

under this section is the earlier of the following:

(a) the date specified in the agreement as the nominal expiry date of the

agreement;

(b) 2 years after the day on which the FWC approved the agreement.

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[11] The Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd examined the

ordinary meaning of exceptional circumstances at paragraph 13 of that decision:

“In summary, the expression "exceptional circumstances" has its ordinary meaning

and requires consideration of all the circumstances. To be exceptional, circumstances

must be out of the ordinary course, or unusual, or special, or uncommon but need not

be unique, or unprecedented, or very rare.”

My underline

[12]      The submissions of the applicant stated that arrangements in the Agreement for the

minimum payment of two hours, rather than three hours per engagement were made in the

context of New South Wales legislation, that the Education Department mandates that no

child is to be transported for longer than 90 minutes either going to school or returning from

school.

[13]      It is submitted that the requirements and work performed can be characterised as

‘special’ because of the nature in which drivers are engaged to transport disable school

children under the State Government’s Assisted School Travel Scheme. In particular, travel

time limitations placed on drivers by the education department as well as the eligibility of

children for this program and the presence of children’s assisted support officer (ASTO).

[14]      I accept that the time restraint imposed on the operations of the applicant can be

construed as an exceptional circumstance justifying the application of s.189.

Public interest

[15]      Having established that the Agreement does not meet the better off overall test, and

that ‘special’ circumstances apply, the Commission may only approve the Agreement if it is

not contrary to the public interest.

[16]      The Full Bench in Transport Workers’ Union of Australia v Jarman Ace Pty Ltd T/A

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Pty Ltd Ace Buses at paragraph 34 stated:

“Section 189 of the Act requires a decision-maker to make a discretionary decision in

determining if he or she is satisfied that, because of exceptional circumstances, the

approval of the agreement would not be contrary to the public interest.”

[2016] FWCA 656

[17]      The test in s. 189(2) is whether the agreement, because of exceptional circumstances,

is not contrary to the public interest, which is a lower test than whether approval of the

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agreement is in the public interest .

[18]      Public interest was examined in O’Sullivan v Farrer (1989) 168 CLR 210, the

High Court said (at 216):

“… the expression “in the public interest”, when used in a statute, classically imports a

discretionary value judgment to be made by reference to undefined factual matters,

confined only “in so far as the subject matter and the scope and purpose of the

statutory enactments may enable … given reasons to be [pronounced] definitely

extraneous to any objects the legislature could have had in view”: Water Conservation

and Irrigation Commission (N.S.W.) v. Browning, per Dixon J.”

(Citation omitted.) (Editing in original)

[19]      Having regard to the submissions of the applicant, I am satisfied that, given the

important community service the applicant is engaged in, it would not be contrary to the

public interest for the employees to work under the Agreement, so as to meet the critical

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needs of their passengers	.
Nominal expiry date

[20]      The applicant has provided an undertaking to amend the nominal expiry date to be 2

years from the date of approval in accordance with s.189(4)(b) of the Act. The undertaking is

taken to be a term of the Agreement and attached at Annexure A of this decision.

Approval

[21]      I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act

that are relevant to this application for approval have been met, and that such other

requirements of the Act have been met.

[22]      In my view, based on the submissions of the applicant, it is sufficient to establish that

the applicant’s business is subject to interacting factors that generate exceptional

circumstances; namely the time limitations imposed on the transportation of children to and

from school. For reasons outlined above, I am satisfied that approving the Agreement is not

contrary to the public interest.

[23]      The Agreement is approved under s.189 of the Act and will operate from 16 February

2016 with a nominal expiry date of two years, in accordance with s.189(4) of the Act.

[2016] FWCA 656

[2016] FWCA 656

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code A, AE417647 PR576613>

1

[2011] FWAFB 975

2

[2014] FWCFB 7097

3

As stated by Deputy President Bartel in Top End Consulting [2010] FWA 6442

4

See for example Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338.

DEPUTY PRESIDENT