GREYHOUND AUSTRALIA OLYMPIC DAM ENTERPRISE AGREEMENT 2013

[2013] FWC 4140

[2013] FWC 4140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GREYHOUND AUSTRALIA OLYMPIC DAM ENTERPRISE AGREEMENT 2013
(AG2013/1189)

Passenger vehicle transport (non rail) industry

DEPUTY PRESIDENT BARTEL ADELAIDE, 25 JUNE 2013

Application for approval of the Greyhound Australia Olympic Dam Enterprise Agreement 2013 - dismissed

[1] An application for approval of an enterprise agreement known as the Greyhound Australia Olympic Dam Enterprise Agreement 2013 (the Agreement) has been made by Greyhound Australia Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] A Statement of Preliminary Findings (the Statement) dated 24 May 2013 was issued to the employer, in which I raised concerns as to whether the Agreement passes the better off overall test as required by s.186(2)(d) of the Act. The Agreement provides a flat rate of pay in lieu of the payment of penalties, allowances, overtime and weekend and public holiday rates that would otherwise apply under the Passenger Vehicle Transportation Award 2010 (the Award).

[3] In response to the Statement, the employer provided a range of material including written submissions, rosters and undertakings. A hearing was held on 7 June 2013 and the employer subsequently forwarded a sample roster showing comparative rate calculations pursuant to the Award and the Agreement.

[4] The undertakings provided by the employer 1 addressed several matters which could properly be regarded as minor amendments to the Agreement together with undertakings to the effect that employees will not receive less than they would otherwise be entitled to receive pursuant to the Award.

[5] I have had regard to all the material provided by the employer. The comparative rates for the two week sample roster 2 are missing two key components in the calculation of the rates that would be received by the employees under the Award. The first is a component for the 8 hours worked on the first Sunday of the two week roster, which are recorded in the sample roster as hours worked but do not appear to have been assigned a monetary amount. The second is the absence of recognition of the waiting time allowance payable pursuant to clause 21.5 of the Award. This clause provides as follows:

“21.5 An employee who is engaged as a coach driver on a single day charter may have a rostered shift divided into two working periods, with no requirement to return to the depot during the rostered shift. Such an employee will be paid waiting time at the rate of 50% of the ordinary rate of pay plus any applicable penalty or loading, provided that the waiting time so paid for will not be taken into account in the computation of hours for overtime purposes.”

[6] The sample roster includes rostered shifts divided into two periods (divided shifts) on twelve out of thirteen shifts worked. These shifts include two rostered Saturdays and one rostered Sunday where the waiting time under clause 21.5 is based on rates of pay incorporating the Saturday and Sunday loading.

[7] The hours between shifts on each day a divided shift is worked are significant (77 hours over the sample roster period) and would attract a minimum waiting time allowance of $9.32 per hour for a G3 permanent employee under the Award.

[8] On my calculation, an employee working the sample roster would be worse off under the Agreement than under the Award by several hundred dollars using the minimum allowance of $9.32 per hour of waiting time. 3 This deficit takes account of the benefit otherwise provided by the loaded rate of pay under the Agreement and I note that there are no other entitlements under the Agreement which compensate for this deficit.

[9] The employer undertakings do not meet the statutory requirements since they are based on “no disadvantage” to the employee as opposed to the requirement under ss.186(2)(d) and 193(1) of the Act that the employee be “better off overall” under the Agreement than if the Award applied.

[10] In these circumstances I am not satisfied that the Agreement meets the statutory requirements for approval and the application is dismissed.

DEPUTY PRESIDENT

Appearances: Mr I MacDonald, for the applicant

Hearing details: 7 June 2013

Final written submissions: 20 June 2013

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