Gould Enterprises Pty Ltd

[2021] FWCA 4084

[2021] FWCA 4084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gould Enterprises Pty Ltd
(AG2021/5871)

GOULD ENTERPRISES SCHOOL RUNS ENTERPRISE AGREEMENT 2021

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT DEAN	CANBERRA, 16 JULY 2021

Application for approval of the Gould Enterprises School Runs Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Gould Enterprises School Runs Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gould Enterprises Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement covers the Applicant and its employees engaged in the provision of transportation for school children with disabilities to and from school as part of the NSW Assisted School Travel Program (ASTP).

[3] The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant modern award for the purposes of the Better Off Overall Test (the ‘BOOT’). The rates of pay under the Agreement are comparable to the Award and the Agreement contains terms and conditions that are more beneficial than those under the Award. However, the Agreement provides a minimum engagement of 1.5 hours as opposed to two hours under the Award. On balance, I am not satisfied that the Agreement meets the BOOT as required under s.186 of the Act.

[4] In the Employer’s Declaration in support of the approval application (Form F17), the Applicant acknowledged that employees may not be considered better off under the Agreement. Despite this, the Applicant submits that the Commission can be satisfied that approving the Agreement would not be contrary to the public interest pursuant to s.189 of the Act.

[5] The Applicant explained that arrangements in the Agreement for the minimum engagements of 1.5 hours rather than two hours are made in the context of the restrictions regulated by the NSW Department of Education imposing an outer limit of 90 minutes for each assignment (transportation to and from school).

[6] The Applicant submits that the approval of the Agreement would not be contrary to the public interest on the grounds that the circumstances are special in which these drivers provide their services due to the needs of the particular children, and the governing rules, protocols and funding arrangements for their transport. Further, the ASTP Program is of considerable value to the affected families, and it is in the public interest that it can continue.

[7] I consider that the special circumstances of the Applicant, including the nature of its work and funding arrangements, are exceptional in the sense that while they are not necessarily unique or unprecedented, they are uncommon. 1 In the circumstances, I am satisfied that it would not be contrary to the public interest to approve the Agreement under section 189(2). I am further satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

[10] The Agreement is approved and, in accordance with s 54, will operate from 23 July 2021. The nominal expiry date of the Agreement is 16 July 2023.

DEPUTY PRESIDENT

 1   Nulty v Blue Star GroupPty Ltd (2011) 203 IR 1 at [13]

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