Greyhound Australia Pty Ltd

[2024] FWCA 682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Greyhound Australia Pty Ltd

(AG2023/2853)

GREYHOUND AUSTRALIA ENTERPRISE AGREEMENT 2023

Passenger vehicle transport (non rail) industry
COMMISSIONER MATHESON	SYDNEY, 21 FEBRUARY 2024

Application for approval of the Greyhound Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Greyhound Australia Enterprise Agreement 2023 (Agreement). The application was made by Greyhound Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Applicant is the employer covered by the Agreement and is a bargaining representative for the purposes of s.185(1) of the Act. The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A indicates that the notification time for the Agreement was 22 February 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 to the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in relation to genuine agreement in force immediately prior to 6 June 2023.

The Transport Workers’ Union of Australia is a bargaining representative for the Agreement. There are also 10 employee bargaining representatives, including Mr Warren Lang who opposed approval of the Agreement. Mr Lang filed a Form F18A indicating that he did not support approval of the Agreement on a number of grounds which are dealt with in this decision and also filed materials with the Commission on 27 September 2023, 16 October 2023, 25 October 2023, 29 October 2023, 6 November 2023, 15 November 2023, 21 November 2023 and 26 November 2023.

As the application for approval of the Agreement was contested the matter was the subject of a hearing. The Applicant sought to be represented by a lawyer and taking into account the complexity in relation to the matter arising from contested views regarding whether the Agreement passed the better off overall test, the terms of the Agreement and undertakings offered by the Applicant, I considered that the matter would proceed more efficiently if permission was granted and therefore granted permission pursuant to s.596(2)(a) of the Act.

The Applicant provided several iterations of undertakings in response to issues raised by the Commission and bargaining representatives and both the bargaining representatives and Applicant filed further materials subsequent to the hearing. The undertakings referred to in this decision are the final version of the undertakings provided by the Applicant unless indicated otherwise.

Material to accompany the application and signature requirements

Section 185(2) of the Act requires that the application be accompanied by a signed copy of the Agreement and any declarations required by the procedural rules to accompany the application. Section 185(5) of the Act provides that the regulations may prescribe requirements relating to the signing of enterprise agreements.

The application was accompanied by a ‘Form F17A – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time before 6 June 2023’ (Form F17A) in accordance with rule 24 and Schedule 1 to the Fair Work Commission Rules 2013 (Rules).

The application was accompanied by a signature page that did not comply in all respects with regulation 2.06A of the Fair Work Regulations 2009 (Cth) (Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

When the application must be made

The Agreement is not a greenfields agreement. In this regard s.185(3) of the Act provides that the application must be made within 14 days after the agreement is made or, if in all the circumstances the Commission considers it fair to extend that period, within such further period as the Commission allows. The application was made within 14 days after the agreement is made and I am satisfied that the requirements of s.185(3) of the Act have been met.

When the Commission must approve an enterprise agreement – general requirements

Section 186(1) of the Act provides that if an application for approval of an enterprise agreement is made under section 185, the Commission must approve the agreement if the requirements set out in ss. 186 and 187 are met.

Genuine agreement

Section 186(2)(a) of the Act requires that the Commission be satisfied that the Agreement has been genuinely agreed to by the employees covered by it in order to approve the Agreement.

Section 188(1) of the Act sets out the matters the Commission must be satisfied about in order for the Agreement to have been genuinely agreed to by the employees covered by it. These include requirements for the Commission to be satisfied that:

(a)the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i)subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii)subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b)the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c)there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

Section 188(2) provides that an enterprise agreement has also been genuinely agreed to if the Commission is satisfied that:

(a)the agreement would have been genuinely agreed to within the meaning of subsection 188(1) but for minor procedural or technical errors made in relation to the requirements mentioned in subsections 188(1)(a) or (b), or the requirements of ss. 173 and 174 of the Act relating to a notice of employee representational rights; and

(b)the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of ss. 173 and 174.

Employees must be given a copy of the Agreement and other material incorporated by reference or have access to those materials

Section 180(1) of the Act provides that before an employer requests, under subsection 181(1) that employees approve a proposed enterprise agreement by voting for it, the employer must comply with the requirements set out in s.180.

Section 180(2) of the Act provides that the employer must take all reasonable steps to ensure that:

(a)during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i)the written text of the agreement;
(ii)any other material incorporated by reference in the agreement; or

(b)the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

It is declared in the Form F17A that on 25 July 2023 the Agreement was sent to employees and representatives. This was seven clear days before the start of the access period. No bargaining representative disputed this. Based on the material before the Commission I am satisfied that the requirements of s.180(2) of the Act have been met.

Notification of vote

Section 180(3) of the Act requires the employer to take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a)the time and place at which the vote will occur;
(b)the voting method that will be used.

Section 180(4) provides that the ‘access period’ for a proposed enterprise agreement is the 7 day period ending immediately before the start of the voting process referred to in 181(1).

The voting process commenced on 2 August 2023. It is declared in the Form F17A that on 24 July 2023 a ‘voting notification email’ was sent to employee. A copy of the voting notice was provided with the application and no bargaining representative disputed that this notice had been sent as stated by the Applicant. Based on the material before the Commission I am satisfied that the requirements of s.180(3) of the Act have been met.

Explaining the terms of the Agreement

Section 180(5) of the Act requires the employer to take all reasonable steps to ensure that:

(a)the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b)the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

It is declared in the Form F17A that on 25 July 2023 the Agreement, a document comparing the terms in the Agreement with the relevant awards and an explanatory document were provided to employees and their representatives. Copies of these documents were filed with the application. It is also declared in the Form F17A that:

human resources representatives of the Applicant met with supervisors on 25 July 2023 to explain the changes in the Agreement and asked managers to print copies of all documents and call all relevant employees to explain the terms of the Agreement; and
throughout the access period representatives of human resources, supervisors and managers called, texted and had face to face meetings with employees to ensure that they had received all relevant information and understood the Agreement;
‘Teams’ information sessions were set up;
questions and enquiries were responded to;
the award comparison document and explanatory document were used to discuss the terms and identify and explain key differences in terms.

Based on the material before the Commission I am satisfied that the requirements of s.180(5) of the Act have been met.

Request to vote

Section 181(1) of the Act provides that an employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

Section 181(2) provides that the request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights (NERR)) in relation to the agreement is given. It is declared that the last date that a NERR was given to an employee who will be covered by the Agreement and who was employed at the notification time for the Agreement was 3 March 2023. This is well before the request for vote was made in August 2023.

Based on the material before the Commission I am satisfied that the requirements of s.181(2) of the Act have been met.

Was the Agreement made?

The Agreement is a single enterprise agreement that is not a greenfields agreement and as such s.182(1) of the Act applies. Section 182(1) of the Act provides that if the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

It is declared in the Form F17A that at the time of the vote 169 employees were covered by the Agreement, 152 of these employees cast a vote and of these employees 87 voted to approve the Agreement (i.e. 57.2% of those who cast a valid vote). The vote was conducted electronically via GoVote Pty Ltd and a copy of the declaration of results was provided confirming the information provided in the Form F17A.

Of the 152 employees who cast a vote, 36 were casual. The Commission sought further information from the Applicant addressing whether casual employees who cast a vote were employed at the time and entitled to vote. The Applicant confirmed that it had reviewed its records and that of the 152 employees who voted, 36 were casual and of these 18 worked during the access period and 18 did not. Notwithstanding this, if all of the 18 employees voted yes and were ineligible to do so (reducing the number of eligible votes to 134 and the number of ‘yes’ votes to 69), the Agreement would still be made by a narrow majority.

Based on the material before the Commission I am satisfied that the Agreement was made in accordance with s.182(1) of the Act.

Are there any other reasonable grounds for believing that the Agreement has not been genuinely agreed to?

Based on the material before the Commission in accordance with s.188(1)(c), I am satisfied that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.

I am therefore satisfied that the Agreement has been genuinely agreed to in accordance with s.188 of the Act.

Requirement that the terms of the Agreement do not contravene s.55

Section 186(2)(c) of the Act provides that the Commission must be satisfied that the terms of the agreement do not contravene s.55 (which deals with the interaction between the National Employment Standards (NES) and enterprise agreements). Section 55(1) of the Act has the effect that the Agreement must not exclude the NES or any provision of the NES.

Clause 5.2(b) of the Agreement states: ‘No terms of this Agreement will operate to exclude the NES’.

Clause 8.2 of the Agreement provides that notice of termination is not required in circumstances of serious misconduct and clause 8.2(d) of the Agreement provides a list of the circumstances that the Agreement deems serious misconduct. The Commission raised the concern that this may be inconsistent with s.123(1)(b) if the Act and regulation 1.07 of the Regulations, which provide that employees are not entitled to notice of termination where they have been terminated due to ‘serious misconduct’ as defined in the Regulations.

The Transport Workers’ Union of Australia (TWU) filed a ‘Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement)’ (Form F18). In relation to the issue referred to above, the TWU raised in its Form F18 that:

the reference to ‘dishonesty’ at subclause 8.2(d)(ii) of the Agreement encapsulates a broad range of conduct that will not necessarily constitute serious misconduct;
the reference to ‘engaging in conduct or acts that have potential to cause damage to Greyhound’s reputation/brand’ is broader than conduct that causes ‘imminent risk to the reputation, viability or profitability of the employer’s business’ as referred to in regulation 1.07(2)(b)(ii) and the ordinary meaning of misconduct;
the NES preservation clause in clause 5.2(b) of the Agreement does not resolve the matter as the definition of serious misconduct lies in the Regulations and not the NES and clause 5.2(b) states that it will ‘not exclude’ the NES but does not state that the NES will apply over the Agreement in the event of an inconsistency.

The Applicant did not accept that the Agreement contravenes s.55 of the Act and in relation to the concerns raised by the TWU submitted that the grounds listed as constituting serious misconduct are to be read in conjunction with clause 5.2(b) which provides that the Agreement will not operate to exclude the NES.

Notwithstanding its position, the Applicant provided undertakings to address the concerns in the following terms:

‘1. National Employment Standards

For the avoidance of doubt, this Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency.’

2. Serious misconduct

For the purpose of clause 8.2(d) of the Agreement, the definition of serious misconduct will be that contained in Regulation 1.07 of the Fair Work Regulations 2009 as amended from time to time.’

Clause 10(h) of the Agreement provides that if an employee ceases their employment, the employer will deduct from final termination payments any remaining overpayment it may be owed under the Agreement. The Commission raised the concern that this may have the effect of reducing an employee’s NES entitlements. The TWU raised a concern in relation to clause 10(h) but in the context of the BOOT and noted that the provision may be unenforceable due to s.326 of the Act.

The Applicant submitted that an overpayment is by definition an amount an employee would not be entitled to and as such seeking to recover an overpayment will not result in a BOOT issue nor an underpayment. The Applicant also indicated that it is aware that any deduction from wages is subject to the permitted deductions requirements in s.324 of the Act. Notwithstanding its submissions the Applicant provided an undertaking to address the concern in the following terms:

‘3. Permitted deductions

For the avoidance of doubt, clause 10(h) of the Agreement, which permits Greyhound to make deductions from termination payments to recoup overpayments, will not be applied other than in accordance with the permitted deductions requirements in section 324 of the Fair Work Act and will not otherwise have the effect of reducing an Employee’s NES entitlements.’

Clause 17(e) of the Agreement provides that an employee must notify the employer of an absence on personal/carer’s leave as soon as practicable and no later than 60 minutes before the commencement of their shift. The Commission raised the concern as this is inconsistent with s.107 of the Act which provides that notice must be given as soon as practicable (which may be a time after the leave has started). The TWU also raised this concern in its Form F18. The Applicant provided an undertaking to address this concern in the following terms:

‘5. Clause 17(e) – Personal/Carer’s leave

For the avoidance of doubt, clause 17(e) of the Agreement, which requires Employees to give notice 60 minutes prior to the shift start time of the intention to take personal/carer’s leave, will not be applied inconsistent with section 107 of the Act.’

The views of each person I know is a bargaining representative for the Agreement were sought in relation to the undertakings addressing the NES concerns set out above. I am satisfied that the effect of accepting the undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement

I am satisfied that the undertakings provided resolve the concerns in relation to the NES and that, in accepting the undertakings, the terms of the Agreement do not contravene section 55.

Fairly chosen

Section 186(3) of the Act requires the Commission to be satisfied that the group of employees covered by the Agreement was fairly chosen. Section 186(3A) provides that if an agreement does not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Clause 4 of the Agreement provides that it will apply to employees of the Applicant engaged in classifications set out in Schedules 1 and 2 of the Agreement. Schedule 1 includes classifications for:

1.Drivers including:

(a)   Coach Captain;
(b)   Two Up Driver;
(c)   Driving Supervisor;

2.Workshop employees including:

(a)   Foreperson;
(b)   Leading Hand;
(c)   Trades Person
(d)   Trades Person Level 2;
(e)   Specialised Trades Person;
(f)    Trades Assistant;
(g)   Storeperson;
(h)   Yardperson.

Schedule 2 includes classifications for Customer Service Officer (CSO) employees (ranging from levels 1-4 and Supervisors).

The Agreement does not cover corporate support staff including the Chief Executive Officer, Finance, Human Resources, IT and Marketing staff. The coverage of the Agreement aligns with the Greyhound Australia Express Enterprise Agreement 2018, which currently applies to relevant employees and the roles are specific to the operation of the Applicant’s coach business.

I am satisfied that the group of employees covered by the Agreement are operationally and organisationally distinct and that the group of employees covered by the Agreement was fairly chosen as required by s.186(3) of the Act.

Terms of the Agreement

Having considered the terms of the Agreement I am satisfied that the Agreement:

does not include any unlawful terms (s.186(4));
does not include any designated outworker terms (s.186(4A);
specifies a date as a nominal expiry date (s.186(5)(a) and that the date will not be more than four years after the day on which the Commission approves the Agreement (s.186(5)(b));
includes a term (being clause 27 of the Agreement) that provides a procedure that requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the Agreement, to settle disputes about any matters arising under the Agreement and in relation to the NES and that allows for representation of employees covered by the Agreement for the purposes of that procedure (s.186(6)).

Section 187 considerations

Section 187 of the Act sets out additional requirements that must be met before the Commission approves an agreement. Relevant to the application is s.187(4) which requires the Commission to be satisfied as referred to in any provisions of Subdivision E of Division 4 of Part 2-4 of the Act that apply in relation to the Agreement. Subdivision E sets out approval requirements relating to particular employees, including shiftworkers.

Relevantly for the purposes of the additional week of leave in the NES applicable to shiftworkers clause 21.1 of the Passenger Vehicle Transportation Award 2020 MA000063 (Passenger Vehicle Award) and clause 34.2 of the Manufacturing and Associated Industries and Occupations Award 2020 MA00001 (Manufacturing Award) provide that a shiftworker means an employee who is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays. Clause 32.2 of the Clerks – Private Sector Award 2020 MA000002 (Clerks Award) provides that the entitlement applies to an employee who is a shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.

Section 196(1) of the Act provides that if an employee is covered by an enterprise agreement and a modern award that is in operation covers the employee or describes the employee as a shiftworker for the purposes of the NES, the Commission must be satisfied that the agreement defines or describes the employee a shiftworker for the purposes of the NES.

Clause 3 of the Agreement defines a shiftworker for the purposes of the NES as an employee who is a seven day shift worker who is regularly rostered to work on Sundays and public holidays. As such, I am satisfied that the requirements in s.196(1) of the Act have been met. I am satisfied that the requirements of s.187 of the Act, to the extent that they are relevant to the application, have been met.

The better off overall test

A key issue for determination in this matter is whether the Agreement passes the better off overall test (BOOT). This is the key issue that remains in contest between the Applicant and Mr Lang, particularly in relation to Drivers covered by the Passenger Vehicle Award.

It is not in dispute that there are three modern awards that are relevant for the purposes of the better off overall test being the:

(a)Passenger Vehicle Award;
(b)Manufacturing Award; and
(c)Clerks Award (collectively ‘Awards’).

The BOOT requires an overall assessment and a detriment in the Agreement as compared to a term in the Awards does not necessarily mean that the Agreement does not pass the BOOT. It may be the case that notwithstanding the existence of detriments, the benefits in an enterprise agreement, considered on an overall basis, have the outcome that an agreement nevertheless has the effect that employees covered by it are better off than they otherwise would be than if the relevant modern award applied to them.

Attachment D to the Form F17A filed with the Application sets out a comparison of the terms of the Awards and the Agreement, identifying which terms are more beneficial, less beneficial and ‘neutral’. In that document the Applicant has identified what it says are a number of Agreement terms that are more beneficial than the Awards. While there are contested views between the Applicant and Mr Lang as to whether some of the terms it has identified as more beneficial are indeed more beneficial and this is dealt with in the consideration of issues below, among the terms compared are the following that are more beneficial than those prescribed by the relevant Awards:

clause 6.2(a)(i) of the Agreement which guarantees a part time Driver or Workshop employee at least 20 hours of work, noting there is no equivalent provision in the Passenger Vehicle Award or Manufacturing Award;
clause 8.4 of the Agreement which provides that if an employee’s employment is terminated whilst the employee is working away from their Home Depot/Home Base (where they are not based at a depot), or usual place of work, the Applicant shall provide the employee with the reasonable means of returning to their Home Depot/Home Base or usual place of work, or reimburse the cost of reasonable coach fares and accommodation. There is no equivalent provision in the Awards;
clause 3 of Schedule 3 in respect of make up pay in relation to full time Drivers;
clause 23 dealing with paid entitlements at times of breakdowns, natural disasters or other catastrophes to the extent that there are no equivalent provisions in the Awards;
clause 10 which provides Drivers with an entitlement to a commission calculated with reference to ticket transactions;
the higher duties provisions in clause 11 with respect to CSO employees;
the first aid allowance in clause 12 in respect of employees who would otherwise be covered by the Clerks Award and who would receive a lesser amount under that award;
clause 5.5 of Schedule 3 dealing with tool allowance with no equivalent being provided for in the Passenger Vehicle Award or Manufacturing Award;
clause 5.6 of Schedule 3 to the extent that it provides a tool allowance of a higher value than that prescribed by the Manufacturing Award;
clause 5.7 of Schedule 3 of the Agreement to the extent that the Passenger Vehicle Award does not provide a protective clothing and uniform allowance;
clause 5.10 of Schedule 3 which provides an entitlement to an additional hourly payment for Drivers (excluding Driving Supervisors) who are requested to undertake certain duties to the extent that there is no equivalent entitlement in the Passenger Vehicle Award;
clause 5.11 of Schedule 3 dealing with reimbursement for log books or work diaries in respect of employees covered by the Manufacturing Award, noting there is no equivalent entitlement in that award;
clause 4.2 of Schedule 4 dealing with uniform allowance in relation to CSO employees to the extent that it is more beneficial than clause 19.4 of the Clerks Award;
clause 24 which provides for the provision of employer supplied uniforms and personal protective equipment;
clause 28 being the dispute resolution term of the Agreement that allows for a party to refer a dispute to the Commission for arbitration following exhaustion of the steps in that process.

It is uncontroversial that the base rates of pay in the Agreement are higher than those in the Awards. However the Agreement includes ‘loaded rates’, being rates of pay that are set to take into account other entitlements that employees would have received if the relevant modern award applied to them. This means that for some employees, the question as to whether they are better off overall or not depends on their working arrangements and whether (and the extent to which) they would have received entitlements under the relevant award in relation to those working arrangements. This means that the assessment of the BOOT is not a straightforward one in the current matter.

While the BOOT is an overall assessment, given the existence of loaded rates and multiple detriments when the individual terms of the Awards are compared to the Agreement, in this matter it has been necessary to identify those detriments to provide the Applicant the opportunity to address concerns raised by the Commission and bargaining representatives that employees under the Agreement are not better off overall when the terms of the Agreement as compared with the Awards are considered as a whole.

Identification of detriments in an agreement as compared to the award provisions is a step in the process of the BOOT analysis that is commonly undertaken by the Commission in matters such as this, notwithstanding that it is the combination of terms that may give rise to a BOOT concern. In this matter, there are some ‘detriments’ that considered in isolation may not in and of themselves give rise to a BOOT concern but when considered in the context of the other detriments and benefits in the Agreement, a BOOT concern does arise.

It is the overall assessment of the terms of the Agreement as compared to the Awards that is required and solutions to a BOOT concern may be addressed in multiple different ways, taking into account the balance of the terms in an agreement and any undertakings provided. The multiple pathways that may be taken to enable the Commission to reach a state of satisfaction that the Agreement passes the BOOT may not involve replication of the precise term of a modern award in relation to which a detriment arises. In relation to the BOOT concerns identified in the current matter it has been incumbent upon the Applicant to present a solution to the concern for the Commission’s consideration, with the bargaining representatives having been provided the opportunity to provide their views.

Where undertakings are concerned, s.190(3) of the Act provides that the Commission must not accept an undertaking unless satisfied that the effect of accepting the undertaking is not likely to:

(a)cause financial detriment to any employee covered by the agreement; or

(b)result in substantial changes to the agreement.

Further, s.190(4) of the Act provides that the Commission must not accept an undertaking under subsection 190(3) unless the Commission has sought the views of each person who the Commission knows is a bargaining representative for the Agreement. The views of the bargaining representatives have been sought in relation to the undertakings provided by the Applicant. More broadly, the bargaining representatives have also been provided with multiple opportunities to provide their views regarding the question of whether the Agreement passes the BOOT and the submissions and materials filed by the bargaining representatives have been considered where provided. In this matter undertakings, in their final form, have not addressed Mr Lang’s concern that the Agreement does not pass the BOOT test. In these circumstances, the issues brought to the attention of the Applicant in relation to the BOOT are dealt with below so that the undertakings provided to address the concerns, together with the terms of the Agreement, can be considered in that context and on an overall basis.

Apprentices and trainees

Clause 14(b) of the Agreement provides states:

‘Employees who are engaged under an apprenticeship or traineeship will be paid at least in accordance with the apprenticeship / traineeship classification the Employees applicable Award which would otherwise apply as at the date of this Agreement.’

Despite the reference to employees engaged under an apprenticeship or traineeship in clause 14(b) of the Agreement, clause 4 of the Agreement provides that it will apply to employees of the Applicant engaged in classifications set out in Schedules 1 and 2 of the Agreement. Apprentices and trainees do not appear in the classifications prescribed in Schedules 1 and 2. Further, the Commission raised the concern that there does not appear to be any entitlements within the Agreement which would ensure that apprentices and trainees would be better off overall under the Agreement.

In this regard the Applicant submitted that clause 14(b) of the Agreement is included for the avoidance of doubt in relation to the terms and conditions in relation to which apprentices will be engaged and that their engagement will be in accordance with the applicable award. The Applicant submitted that it does not presently engage apprentices or trainees however would engage future apprentices or trainees on employment conditions consistent with the Awards.

Despite the awkward wording of clause 14(b) of the Agreement, having regard to the Applicant’s explanation and the terms of the Agreement, including the coverage provisions, I am satisfied that the Agreement does not cover apprentices and trainees and that it was intended that they are to instead derive their terms and conditions from the applicable modern award as submitted by the Applicant.

Display of rosters

Schedule 3 to the Agreement sets out terms specific to drivers and workshop employees. Clause 4.1(c) of Schedule 3 to the Agreement provides:

‘Where practicable, at least seven (7) days before the start date of a roster, the roster will be displayed in a prominent position within the depot, which is accessible to all Employees required to work over the Roster Period.’

Clause 13.2 of the Passenger Vehicle Award provides:

‘13.2 Notice requirements

(a) All known rostered duty, which may include broken shifts and days off, must be displayed at least 7 days before the start of the rostered duty.

(b) Changes to the roster, including alterations to days off, must be displayed at least 24 hours in advance and the employee must be notified.

(c) Any changes for which less than 24 hours’ notice has been given must be agreed to by the employee.’

The TWU raised a concern that when the two provisions are compared the inclusion of the text ‘where practicable’ in clause 4.1(c) of Schedule 3 to the Agreement may mean that employees are not better off overall under the Agreement.

The Applicant submitted that clause 4.1(c) of Schedule 3 to the Agreement is in line with the requirement in the Passenger Vehicle Award, which requires the rosters to be displayed at least 7 days before but for a shorter period if there are changes to the roster (clause 13.2(b)). The Applicant submitted that its commitment to display rosters as far as practicable is a recognition that there are circumstances where it may not be possible because of changes to rostering that may be required for a number of reasons (such as staff shortages, leave, passenger demand or weather delays). The Applicant submits that employees will not be worse off in comparison to the award as a result of the operation of the clause.

Having considered clause 4.1(c) of Schedule 3 to the Agreement and clause 13.2 of the Passenger Vehicle Award it appears that the Agreement may give rise to a detriment in that the Passenger Vehicle Award requires that the roster, in respect of known rostered duty, be displayed at least 7 days before the start of rostered duty and this requirement is not qualified by the term ‘where practicable’. However, given clause 13.2 of the Passenger Vehicle Award contemplates changes to the roster without the employee’s agreement 24 hours in advance, it seems likely that the two provisions would have similar practical effect and any detriment would be minor in nature, noting the BOOT requires an overall assessment.

Customer service hours of work

Schedule 4 to the Agreement sets out terms specific to CSO employees. These employees are covered by the Clerks Award. Clause 1(d) of Schedule 4 to the Agreement provides that each shift shall be no greater than 10 hours unless mutually agreed. Clause 13.7 of the Clerks Award provides that the maximum number of ordinary hours than can be worked on any day is 10, excluding unpaid meal breaks. The Commission noted that CSO employees are paid base rates under the Agreement that are only marginally above the base rates in the Clerks Award and raised the concern that non-payment of overtime for hours worked in excess of 10 per day may have the effect that employees are not better off overall.

In response, the Applicant referred to clause 1 of Schedule 4 to the Agreement and stated that it pays overtime to CSO employees consistent with the Clerks Award. Clause 1(e) of Schedule 4 to the Agreement provides that overtime will be paid for work performed outside of an employee’s ‘Ordinary Hours’ at time and a half (50%) for the first two hours and double time (100%) thereafter calculated on a daily basis.

Given the Clerks Award provides for payment at the overtime rate for work in excess of 10 ordinary hours in a day, it appears that under the Agreement overtime will be payable to CSO employees if they work in excess of 10 hours in a day on the basis that the parameters in clause 1 of Schedule 4 in relation to working hours are considered to form part of the parameters for ‘Ordinary Hours’ with working time outside of those parameters to be paid as overtime at overtime rates. As such, I accept the Applicant’s explanation in this regard.

The Commission also raised that clause 6.2(b)(iii) of the Agreement, which applies to CSO employees, provides that a part time employee will not generally be rostered for shifts shorter than three (3) hours without the employee’s agreement whereas in comparison clause 10.5 of the Clerks Award provides that an employer is required to roster a part time employee for a minimum of 3 consecutive hours on any shift. The Commission raised a concern that given base rates of pay are only marginally higher than those in the Clerks Award, a detriment may arise if employees are required to work fewer than three hours such that a part time CSO employee may not be better off overall.

The Applicant confirmed that its practice is to not roster CSO employees for less than three hours however conceded that clause 6.2(b)(ii) of the Agreement provides the ability for the Applicant to roster part time employees for less than three hours. The Applicant provided an undertaking to address the concern in the following terms:

‘10. Part-Time CSO employees

For the avoidance of doubt and consistent with existing practice, part-time CSO Employees will not be rostered to work for less than three hours per occasion.’

I am satisfied that the undertaking resolves the concern regarding minimum engagement.

Annual leave loading (Customer Service Employees)

Annual leave loading for CSO employees is provided at clause 5.1(f) of Schedule 4 to the Agreement as follows:

‘You are entitled to be paid 17.5% leave loading at the time of taking accrued annual leave.’

Clause 32.3 of the Clerks Award provides for payment of annual leave loading at the greater of:

(i) 17.5% of the minimum hourly rate for the employee’s ordinary hours or work in the period; or
(ii) The minimum hourly rate for the employee's ordinary hours or work in the period inclusive of weekend penalty rates as specified in clause 24 – Penalty rates (employees other than shiftworkers).

The Commission raised the concern that the rates of pay for CSO employees may not be enough to compensate those employees who are regularly engaged to work ordinary hours on Saturday with the consequence that employees may not be better off overall.

The Applicant submitted that:

it pays CSO employees annual leave loading on the rates they would have been paid if they had performed the work and that generally this means their base rate of pay;
it does not generally require full time or part time CSO employees to work on weekends and where weekend work is performed, it is generally on a Saturday and performed by a Casual CSO employee.

Notwithstanding this the Applicant provided the following undertaking to address the concern:

‘6. Annual leave payments (CSO Employees)

For the avoidance of doubt, CSO Employees who take annual leave will be paid for that annual leave an amount equal to or in excess of what they would have been paid under the Clerks Private Sector Award 2020 for that leave.’

I am satisfied that the undertaking resolves the concern regarding payment of annual leave.

Broken Shifts

Clause 1(f) of Schedule 3 to the Agreement states:

‘Without incurring payment for time not worked, Driver and Yardperson shifts may be broken up to three periods within a span of 16 hours. Therefore, in these cases, there will be a maximum of two (2) unpaid breaks per shift.’

Clause 1(e) of Schedule 3 to the Agreement provides that a shift shall be no greater than 14 hours, unless otherwise mutually agreed.

Clause 1(g) of Schedule 3 to the Agreement states:

‘In circumstances of day charter operations and Drivers waiting for Greyhound supplied transport, an unpaid meal break to a maximum of three (3) hours may apply where there is waiting time. In a break of less than three (3) hours waiting time, the actual waiting time shall constitute the break.’

There is no specific provision dealing with broken shifts although clause 13.3 of the Passenger Vehicle Award provides:

‘Coach/bus driver employees on single day charters

(a) An employee engaged as a coach driver or a bus driver on a single day charter may have a rostered shift divided into 2 working periods with no requirement to return to the depot during a rostered shift.

(b) The coach/bus driver will be paid waiting time at the rate of 50% of the minimum hourly rate plus any applicable penalty or loading.

(c) Paid waiting time will not be taken into account when calculating overtime.’

The Passenger Vehicle Award does however seem to contemplate ‘broken shifts’ more broadly, including the following definition of broken shift in clause 2:

‘broken shift means a shift with a spread of hours permitted under the relevant State or Territory driving hours legislation and with an unpaid break of greater than 60 minutes between the 2 portions of work.’

The term ‘broken shift’ is only referenced in one other location in the Passenger Vehicle Award being clause 13.2(a) which states:

‘all known rostered duty, which may include broken shifts and days off, must be displayed at least 7 days before the start of the rostered duty.’

In relation to unpaid breaks:

clause 14.1 of the Passenger Vehicle Award provides that an employee may be rostered for an unpaid meal break of between 30 minutes and one hour to be taken at the depot or any other reasonable location;’
clause 14.2 of the Passenger Vehicle Award provides an ‘employee must not be required to work for more than 5 and half hours without a break for a meal’.

The Commission and TWU raised a concern that employees may not be better off overall if they are not receiving waiting time entitlements that would otherwise be payable under the Passenger Vehicle Award. Mr Lang raised a concern about Drivers being required to take multiple unpaid breaks.

The Applicant submitted that clauses 1(f) and 1(g) of Schedule 3 to the Agreement does not preclude employees from receiving waiting time entitlements that would otherwise be payable under the Award.

In relation to clause 1(f) of Schedule 3 to the Agreement the Applicant submitted that:

clause 1(f) of Schedule 3 is consistent with clause 14.1 of the Passenger Vehicle Award;
clause 14.2 of the Award states that an ‘employee must not be required to work for more than 5 and a half hours without a break for a meal’, and a break can be rostered between 30 minutes and 1 hour;
clause 1(f) of Schedule 3 makes clear that Drivers who are rostered to work 16 hours (which is by mutual agreement under clause 1(e) of Schedule 3) are given two breaks and this is consistent with the Passenger Vehicle Award requirement not to work more than 5.5 hours without a break;
clause 1(f) of Schedule 3 must also be read along with clause 2(c) of Schedule 3 that provides that Drivers are required to take an unpaid meal break of between 15 minutes and one hour at their base depot or another reasonable location after a maximum of 5.5 hours work;
in practice it does not roster employees for less than 30 minute breaks (however some Drivers may break for less than this in order to keep to a schedule subject to work health and safety management, in particular fatigue).

Notwithstanding this, the Applicant provided an undertaking in the following terms:

‘7. Unpaid breaks

For the avoidance of doubt and consistent with existing practice, unpaid meal breaks referred to in clause 1(f) of Schedule 3 to the agreement will be rostered between 30 minutes and one hour.

For the avoidance of doubt and consistent with existing practice, unpaid meal breaks referred to in clause 2(c) and (d) of Schedule 3 to the Agreement will be rostered between 30 minutes to one hour.

Rostered breaks of less than 30 minutes will be paid.’

In relation to clause 1(g) to Scheule 3 of the Agreement, the Applicant submitted that this relates to Day Charter operations, is a historical reference from the existing agreement and does not have application in the new Agreement. The Applicant submitted:

it does not provide Day Charter services and as such the Day Charter classification has been removed from the Agreement but no consequential changes were made to clause 1(g) of Schedule 3 to the Agreement;
while Day Charter operations are no longer implemented, it is willing to provide an undertaking to the effect that if a Driver is required to perform day charter operations their shift arrangements will be implemented in accordance with clauses 13.3 and 14.1 of the Passenger Vehicle Award.

The Applicant provided an undertaking (Undertaking 8) in the following terms:

‘8. Day charter operations

While not part of existing operations, in the event an Employee is required to perform day charter operations, their shift arrangements will be implemented in accordance with clauses 13.3 and 14.1 of the Passenger Vehicle Transportation (PVT) Award 2020.’

The Applicant also provided a more general undertaking to address concerns that it was organising work in a way that may have the effect that employees may not be better off overall. This undertaking (Undertaking 4) is relevant to a number of concerns raised by the bargaining representatives and provides:

‘4. Better off overall

(a)   Neither master nor local rosters will be implemented which would result in an Employee not being better off under the terms of the Agreement than under any otherwise applicable Award, as in force at the time of the approval of the Agreement;
(b)   Greyhound will periodically, but not less than every four months, review master and local rosters to conform compliance with (a);
(c)   Greyhound will at the termination of an Employee’s employment review the Employee’s local roster and pay to confirm compliance with (a) with respect to that Employee;
(d)   if issues are identified via a review in (b) or (c), Greyhound will implement steps required to ensure Employees are better off under the Agreement than under any otherwise applicable Award;
(e)   if Greyhound is required to make a payment to an Employee to comply with (d), the payment will include a payment equivalent to an additional 5% of the identified shortfall; and
(f)    in addition to the reviews referred to in (b), once each calendar year each Employee will be entitled to request that Greyhound undertake a review of that Employ’s local roster to ensure Greyhound complies with (a) with respect to that Employee.’

While the undertakings provided addressed the concerns of the TWU, they did not address Mr Lang’s concerns to his satisfaction.

I have considered the terms of the Agreement together with the Applicant’s response and undertakings referred to above. Clause 1(f) of the Agreement appears to enable the Applicant to roster employees to work across a 16 hour span involving up to three periods of work with an unpaid break in between each period, provided that shifts in excess of 14 hours must be mutually agreed. While Mr Lang raises a concern about multiple unpaid breaks across a shift, the Applicant has correctly asserted that in circumstances where an employee works more than 5 and a half hours a meal break would be required if the Passenger Vehicle Award applied and it seems likely that an employee working a long shift of up to 16 hours would be required to work in a way that triggered a requirement for multiple breaks. In other words, even if working under the Passenger Vehicle Award it is likely that multiple breaks would be required in order to comply with clause 14.2 of the Passenger Vehicle Award in circumstances where employees are working a long shift.

However a consideration arises regarding how long the Agreement permits the unpaid breaks to be particularly as clause 1(f) commences with the words ‘without incurring payment for time not worked’. Such words may give rise to legitimate concerns, such as those raised by Mr Lang, that the Agreement may permit rostering of breaks in a way that would mean that employees are not paid for time that may otherwise attract payment if the Passenger Vehicle Award applied. In this regard I accept the Applicant’s explanation that clause 1(f) of Schedule 3 must also be read along with clause 2(c) of Schedule 3 that provides that Drivers are required to take an unpaid meal break of between 15 minutes and one hour at their base depot or another reasonable location after a maximum of 5 and a half hours work. To the extent that longer unpaid meal breaks of up to three hours are contemplated, this is in the context of clause 1(g) of Schedule 3 to the Agreement which applies to day charter operations. To the extent that clause 1(g) of Schedule 3 gives rise to an outcome that is less beneficial than the award, Undertaking 8 addresses this.

More broadly, Undertaking 4 has the effect of preventing the Applicant from rostering work in a way that has the effect that an employee is not better off under the terms of the Agreement than under any otherwise applicable Award and in circumstances where this is not the case, requires the Applicant to make up the shortfall and pay an additional 5%. Further, in circumstances where there is a dispute about the application of the clause the dispute resolution term of the Agreement (clause 28) allows for a party to refer a dispute to the Commission for arbitration following exhaustion of the steps in that process.

I am satisfied that the undertakings referred to above address the concerns.

Part time employees

Clause 6.2(b)(iii) of the Agreement states:

‘Part-time Ordinary Hours of Work will be as per the Employee roster issued by the Employer from time to time. A Part Time Employee will not generally be rostered for shifts of shorter than three (3) hours without the Employee’s agreement’.

Clause 6.2(b)(iv) of the Agreement provides:

‘Additional hours may be offered to part-time Employees and worked by agreement between Greyhound and the Employee. A Part Time Employee can agree from time to increased rostered Part Time Ordinary Hours of Work.’

In comparison, each of the relevant Awards require that at the time of engagement the employee and employer will agree in witing on a regular pattern of work, specifying at least the number of hours each day, days per week and actual start and finish times each day and that changes in hours may only be made by agreement in writing. The Commission raised the concern that the Agreement’s provisions give rise to a detriment compared to the Awards and given the loaded rates of pay (dealt with below), it is unclear how employees could be considered better off overall. The TWU raised a similar concern.

The Applicant has provided the following undertaking to address the concern:

‘9. Part-Time employees – General

Without limiting clause 6.2 of the Agreement, before commencing part-time employment, the Employee and Greyhound must agree upon the following terms that may be varied by consent:

(a)   the usual hours to be worked by the Employee;
(b)   the days upon which they will be worked;
(c)   the expected commencing and finishing times for the work; and
(d)   in the case of part-time Drivers, the roster arrangements that will apply to the Employee.’

Yardpersons and shift allowance

Schedule 3 to the Agreement provides for terms specific to Drivers and Workshop employees. Clause 5.4 of Scheule 3 to the Agreement provides:

‘5.4 Shift allowance – Yardpersons

(a) Whilst engaged on a continuous shift cycle covering 24 hours per day of rotating shifts, Yardpersons shall receive an hourly shift allowance. This allowance shall also be payable whilst the Yardperson is on leave.

(b) The hourly shift allowance rates are as follows:

2023 2024 2025 2026

$0.65 $0.67 $0.69 $0.71

The Commission raised the concern that the rates of pay for the Yardperson classification, including the above shift allowance, did not appear to be high enough to compensate employees for the lack of shift penalty prescribed by the Passenger Vehicle Award.

The Applicant submitted that Yardpersons are only rostered to work daytime hours (with primary duties involving the cleaning of coaches) such that no night shift penalty would be applicable. Notwithstanding this, the Applicant provided the following undertaking in order to address the concern:

‘11. Yardpersons – Night Shift

For the avoidance of doubt, while Yardspersons are not typically rostered to work night shifts, on the occasions where they are required to do so, the night shift penalty in clause 7 of Schedule 3 to the Agreement will apply.’

Allowance Reductions – Travel (Drivers)

Clause 2(h) of Schedule 3 to the Agreement provides:

‘Time allocated in Greyhound supplied accommodation or an Employee’s own residence, and time spent travelling between this accommodation and designated depots/work location is deemed to be rest time and will be unpaid.’

Clause 5.8(a)(iii) of Schedule 3 to the Agreement provides that a temporary transfer allowance ($2.59 per hour) will be paid to a Driver in the following circumstance:

‘For the hours worked on the return leg of a scheduled express service, when a Driver’s normal roster on that service requires an unpaid layover period of at least 18 consecutive hours. The temporary transfer allowance will not be payable when the layover period is less than 18 consecutive hours on a scheduled express run.’

Clause 5.9 of Schedule 3 to the Agreement provides:

‘Layover Allowance

(a) In addition to the Base Rate of Pay and Transfer Allowance, where a Driver’s normal roster on that service requires an unpaid layover period of at least 22-24 consecutive hours. A layover allowance of 3 hours of the drivers base hourly rate will be paid.

(b) Where a Driver’s normal roster on that service requires an unpaid layover period of at least 24+ consecutive hours. A layover allowance of 8 hours of the drivers base hourly rate will be paid.’

Clause 17.3(d) of the Passenger Vehicle Award provides:

‘Living away from home allowance

(i)An employee whose employment necessitates absence from home and who is unable to conveniently return home will be paid a minimum of 8 hours per day Monday to Friday and a minimum of 8 hours per day on Saturdays or Sundays plus penalty rates for actual time worked on any such day in accordance with Part 5 – Overtime and Penalty Rates.

(ii)The employer will either reimburse the employee for reasonable costs incurred by the employee when living away from home or provide accommodation and all meals.’

Further, clause 17.3(e) of the Passenger Vehicle Award provides:

‘Fares and travelling time

(i)An employee starting or finishing work at a place, other than the ordinary starting or finishing place, will be paid at ordinary rates for travelling time in excess of that normally spent in travelling to and from home.

(ii)Travelling time will not be taken into account when calculating overtime.

(iii)The employer will reimburse an employee for any reasonable travelling expenses incurred in connection with the provisions of clause 17.3(e)’.

The Commission raised the concern that when the temporary transfer allowance provided for in clause 5.8(a)(iii) of Schedule 3 to the Agreement is compared to the entitlements in the Passenger Vehicle Award as referenced above, employees may not be better off overall.

Mr Lang raised a concern in his Form F18A that the Layover Allowance in clause 5.9 of Schedule 3 to the Agreement gave rise to a detriment compared to the Passenger Vehicle Award in that clause 5.9 of Schedule 3 to the Agreement places additional qualifying criteria, beyond the scope of the Passenger Vehicle Award on the payment of the allowance to a Driver. Mr Lang submitted that the clause makes it less likely that a Driver will qualify for the allowance when they are away from home and unable to return home for their day off and that they will therefore be paid less than what they would be paid if the Passenger Vehicle Award applied.

The Applicant noted that clause 17.3(d) of the Passenger Vehicle Award requires a payment of a minimum of 8 hours per day when an employee’s employment necessitates an absence from home whereas in the Applicant’s operations all shifts where employees are required to be away overnight are well in excess of eight hours in duration. The Applicant also noted that clause 5.2 of Schedule 3 to the Agreement provides for meal allowances and accommodation in these circumstances, consistent with the Passenger Vehicle Award.

The Applicant also submitted that clause 5.8(a) of Schedule 3 to the Agreement makes clear that in certain additional circumstances Drivers will be paid an additional allowance for all hours worked in the prescribed circumstances, providing the following examples:

in relation to clause 5.8(a)(iii) of Schedule 3 to the Agreement, a Driver working a Rockhampton to Brisbane shift has a 12.25 hour shift. Because of the 18 hour layover, the driver will be paid $2.59 for the return leg of the service (12.25 hours x $2.59 = $31.73);
in relation to clause 5.8(a)(ii) of Schedule 3 to the Agreement, a Driver is rostered to drive a shift from Brisbane to Byron Bay and is required to stay overnight in accommodation provided by the Applicant. The Driver needs to go to Sydney (second shift taking them further away from home base). The total hours of duty from leaving the home base to returning to the home base will incur the temporary transfer allowance.

The Applicant submitted that the entitlement in the Agreement provides a further benefit to the requirements set out in the Award.

The Applicant’s response did not address Mr Lang’s concern and Mr Lang submitted that clause 5.9(a) of Schedule 3 to the Agreement required ‘22-24 hours in order to qualify for a “Layover Allowance Payment”’ and this provided for a more restrictive application of the allowance and lesser benefit than that in the Passenger Vehicle Award. Mr Lang also submitted that clause 5.9(b) provided for a more restrictive application of and lesser benefit than that conferred by the Passenger Vehicle Award. Mr Lang sought an undertaking that the Layover Allowance be paid in line with the Passenger Vehicle Award but paid at 6.5 hours per layover day which, he submitted, would deliver a similar value to Drivers.

It is apparent that Mr Lang and the Applicant had competing views regarding the application of clause 17.3(d) of the Passenger vehicle Award and while discussions between the Applicant and Mr Lang sought to reconcile this, Mr Lang nevertheless raised a concern that employees the subject of rosters with significant layover periods, whether now or in the future, may not be better off overall. In response to Mr Lang’s concern the Applicant submitted that it was ‘speculative at best’ and:

Drivers who work shifts where they do not return to home base are paid at least a minimum of 8 hours because where the Applicant rosters employees to be away overnight those shifts are well in excess of eight hours (both to and from the layover destination), which is required as a result of the length of the routes in question;
on rare occasions where Drivers are not so rostered, clause 5.9 of Schedule 3 to the Agreement will apply such that Drivers are entitled to a payment of 8 hours at their base rate. Employees who have a layover period of 22-24 hours are entitled to an allowance of 3 hours at their base rate of pay;
in addition, the Applicant also pays the temporary transfer allowance which applies in the circumstances in clause 5.8(a) of Schedule 3 to the Agreement.

The Applicant submitted that this issue does not undermine BOOT compliance, particularly noting the undertakings that had been provided to address any shortfall that had been identified (including Undertaking 4 above).

In relation to concerns raised in relation to clause 17.3(e) of the Passenger Vehicle Award, the Applicant noted that the clause provides that where an employee commences work at a place, other than the ordinary starting or finishing place, they will be paid at ordinary rates for travelling time in excess of that normally spent in travelling to and from home. That is, the clause only requires payment for hours in excess of usual travelling time. The Applicant submitted that as Drivers stay in accommodation provided by the Applicant and their shift starts when they commence work driving, there is almost zero travel time when commencing work at a place other than their ordinary starting or finishing place and as such, additional payments are not required to be calculated when compared to the Passenger Vehicle Award.

The Applicant also noted that travelling time is rostered and paid where employees are directed to work away from their Home Depot in a location that requires further travel than usual to attend work however this is a different scenario than is contemplated by clause 17.3(e) of the Passenger Vehicle Award.

The Applicant submitted the Agreement is ultimately consistent with the relevant provisions of the Passenger Vehicle Award in respect of:

rates of pay;
meals and accommodation;
Driver Commission;
temporary transfer allowance; and
travelling time (as applicable).

Notwithstanding this, the Applicant also pointed to Undertaking 4 which would otherwise address the concern.

Allowance Reduction – First Aid

The TWU raised a concern that the first aid allowance in the amount of $17.63 in clause 12 of the Agreement is less than the first aid allowance of $18.97 at clause 17.2(a) of the Passenger Vehicle Award. The Applicant submitted that payments in excess of Passenger Vehicle Award rates provide sufficient compensation for this reduction. This is a minor detriment that needs to be considered alongside the terms of the Agreement as a whole.

Medical Examinations

Clause 24.4(a) of the Agreement provides that where an employee is required by legislation to undergo a medical examination, (excluding Basic Fatigue Management (BFM)) the cost shall be borne by the employee and appointments are to be attended within the employee’s own time (e.g. their day off).

In comparison, clause 17.3(g)(iii) of the Passenger Vehicle Award provides that where an employer requires an employee to undertake a medical examination the employer will pay the employee an allowance equal to the difference between the cost of the examination and the Medicare rebate. Clause 17.3(g)(iv) provides that where an employee is required to undertake a medical examination for the purposes of obtaining a relevant licence they will be paid an allowance in accordance with clause 17.3(g)(iii), provided that the employer determines the certified medical practitioner who is to perform the examination.

The Applicant submitted:

clause 24.4(a) of the Agreement applies to difference circumstances than those referred to in in clause 17.3(g) of the award;
its employees, particularly Drivers, have a number of legal obligations that are preconditions for employment;
clause 24.4 of the Agreement covers instances where an employee is required by law to undertake a medical examination to retain or gain a licence without which the employee would not be able to perform their role. For example, to carry passengers in Queensland, a Driver must hold a current Driver’s authority and to retain this the Driver must undertake a periodic medical check each 1-5 years depending on their health and age. The Applicant submitted that this is a personal responsibility of the employee required by law and that each state and territory has its own arrangements in this regard. In these circumstances clause 24.4 makes clear that the employee will bear the costs for any medical examination they are required to undertake;
in contrast to clause 24.4 of the Agreement, clause 17.3(g) of the Passenger Vehicle Award applies where the employer directs an employee to undertake a medical examination;
in circumstances where the Applicant requires an employee to undertake a medical examination for any reason, it reimburses the employee for the cost.

Clause 5.2(a) of the Agreement clarifies that the Agreement operates to the exclusion of the Awards and the TWU submitted that clause 17.3(g) of the Award is excluded from the Agreement by virtue of this provision. The TWU submitted that the concern could be addressed via an undertaking that in circumstances where the Applicant requires an employee to undertake a medical examination (for any reason) it will reimburse the employee for the cost.

In response the Applicant provided the following undertaking:

‘17. Medical Examination

For the avoidance of doubt, without limiting clause 24.4 of the Agreement, Greyhound will provide Employees with a Medical Examination Allowance in accordance with clause 17.3(g) of the PVT Award.’

I am satisfied that the undertaking addresses the concern regarding payment of medical examinations.

Meal Breaks

Clause 2(c) of Schedule 3 to the Agreement provides that Drivers are required to take an unpaid meal break of between 15 minutes and one hour after a maximum for five and a half hours work.

Clause 2(d) of Schedule 3 provides that employees performing Yardperson duties may take an unpaid meal break of between 15 minutes and one hour within a 6 hour period of work and one fifteen minute paid rest break within five consecutive hours of work.

In comparison, clause 14.1 of the Passenger Vehicle Award provides:

an employee may be rostered for an unpaid meal break of between 30 minutes and one hour (clause 14.1);
an employee must not be required to work for more than five and a half hours without a break for a meal (clause 14.2);
where a rostered meal break cannot be provided, an employee will be provided with a paid crib break of between 15 and 30 minutes (clause 14.3).

The Commission raised the concern that in circumstances where an employee receives an unpaid break of between 15 and 30 minutes under the Agreement, they may not be better off overall as an employee may be entitled to be paid for such breaks under the Passenger Vehicle Award provisions.

The Applicant submitted that its normal practice is to only rosters employees for breaks of between 30 and 60 minutes however accepted that the Agreement would permit the Applicant to roster 15m minute breaks. As such, in order to address the Commission’s concern the Applicant provided the following undertaking:

‘7. Unpaid breaks

For the avoidance of doubt and consistent with existing practice, unpaid meal breaks referred to in clause 1(f) of Schedule 3 to the Agreement will be rostered between 30 minutes and one hour.

For the avoidance of doubt and consistent with existing practice, unpaid meal breaks referred to in clause 2(c) and (d) of Schedule 3 to the Agreement will be rostered between 30 minutes to one hour.

Rostered breaks of less than 30 minutes will be paid.’

Clause 2(b) of Schedule 3 to the Agreement provides that all ‘refreshment breaks for Drivers of 15 minutes or less will be paid time’.

Mr Lang raised a concern in his Form F18A that the Passenger Vehicle Award made no mention of ‘Refreshment Breaks’, that ‘Refreshment Breaks’ are meal breaks and under the Passenger Vehicle Award only one unpaid meal break per shift is allowed.

The Applicant submitted that there is a clear distinction between clause 2(b) of Schedule 3 (dealing with paid refreshment breaks of 15 minutes or less) and meal breaks in clause 2(c) of Schedule 3 (dealing with unpaid meal breaks) and that the above undertaking should address any concerns regarding breaks.

Mr Lang raised a concern that Undertaking 7 above did not address his concerns as there were no rostered breaks of less than 30 minutes on any shifts he has worked in Cairns and Townsville with all breaks being at least 35 minutes in duration. Mr Lang submitted that the ‘undertaking relies solely on the Driver filling out paperwork to justify being paid and then have it approved by a manager with no guarantee’. Mr Lang sought a revised undertaking in the following terms:

‘1 unpaid, uninterrupted, break of between 30 minutes and 1 hour per shift’; or
‘any rostered break, where the actual duration of the uninterrupted break is less than 30 minutes, will be paid’.

Mr Lang also sought removal of the term ‘rostered’ in Undertaking 7 as distinct from use of the term ‘breaks’ (whether rostered or not). The Applicant did not agree to this amendment.

The Applicant submitted that it was important that breaks be taken as rostered due to work health and safety and fatigue management considerations however nevertheless provided the following undertaking:

‘18. Meal and rest breaks

It is Greyhound’s policy that all rostered breaks are taken as rostered. In the exceptional case that an employee is unable to take their rostered break due to circumstances beyond their control, clause 14.3 of the PVT Award will apply as if it was incorporated into this Agreement.’

I have earlier dealt with Mr Lang’s concern regarding unpaid breaks in the context of broken shifts, noting that in circumstances where employees work long hours, even under the Passenger Vehicle Award multiple meal breaks may be required. I am otherwise satisfied that the undertakings above resolve the concern regarding unpaid meal breaks.

Higher duties

Clause 11.1(a) of the Agreement provides that in circumstances where an employee is required to act in a higher position for at least two hours on any shift or day, they will be paid the higher ‘Base Rate of Pay’ whilst so engaged. In comparison, clause 15.3 of the Passenger Vehicle Award and clause 20.2 of the Manufacturing ward provide that if an employee is required to perform higher duties for at least two hours on any shift/day they will be paid the higher rate for the whole shift/day. The Manufacturing Award additionally provides an entitlement to payment for higher duties at the higher classification for the time worked up to two hours or less. The Commission raised a concern that this issue in combination with other entitlement reductions may mean that employees are not better off overall.

The Applicant submitted that from a practical perspective, due to the nature of its operations, employees required to perform higher duties are rostered to do so for the whole day. However the Applicant also provided an undertaking to address the Commission’s concerns in the following form:

‘12. Higher duties

For the avoidance of doubt and consistent with existing practice, where Driver and Workshop Employees are rostered for higher duties, it will be done in a manner consistent with the PVT Award and Manufacturing and Associated Industries and Occupations Award 2020 as relevant.’

I am satisfied that the undertaking resolves the concern.

Job Search

Clause 9.2 of the Agreement regarding ‘Job Search Entitlement’ provides for a maximum of eight hours paid leave during an employee’s notice period for the purposes of seeking alternative employment. However the Awards provide for a day’s time off without loss of pay during each week of the notice period, in the case of redundancy, for the purpose of seeking alternative employment. The TWU also raised the concern that the Agreement excluded the provisions in clauses 31.3(b) – (c) of the Passenger Vehicle Award with respect to an employee being allowed time off without loss of pay for more than one day by providing proof of attendance at an interview.

The Applicant provided the following undertaking to address the concerns:

‘13. Redundancy – Job search entitlements

For the avoidance of doubt, an Employee who takes a day of leave in accordance with the job search entitlement under clause 9.2 of the Agreement, will be paid for the day of leave what they would have been paid had they worked on that day.

If an Employee is allowed time off without loss of pay of more than one day the employee must, at the request of the Employer, produce proof of attendance at an interview, which may include a statutory declaration.’

I am satisfied that the undertaking resolves the concern.

Payment on termination of employment

The TWU raised the concern that clause 16.5 of the Passenger Vehicle Award provides that payment on termination must be made within 7 days of termination and that this is omitted from the Agreement, giving rise to a BOOT concern. While the Applicant maintained that the Agreement satisfies the BOOT it has provided the following undertaking to address the concern:

‘14. Payment for termination of employment

On termination of employment, Greyhound will make required payments within 7 days of termination of employment.’

I am satisfied that the undertaking resolves the concern.

Taking leave in advance

The TWU raised the concern that provisions for taking annual leave in advance as set out in clause 21.4 of the Passenger Vehicle Award were omitted from the Agreement, giving rise to a BOOT concern. The Applicant submitted that under the Passenger Vehicle Award clause the employer has the discretion to permit leave to be taken in advance and the actual entitlement is the ability to request such arrangements in writing. The Applicant submitted that due to its operational arrangements and need to maintain appropriate levels of Driver employees, it does not approve leave requests in advance and while the Agreement does not expressly provide for employees to make a request, it does not prevent an employee from making such a request. The Applicant submitted that despite the omission, employees are better off overall when compared to the Passenger Vehicle Award. I agree with the Applicant that the absence of an express provision regarding leave in advance requests does not prevent the making of such a request, however inclusion of such a term does establish a clear right and makes employees aware of this and as such the absence of such a provision may be considered a detriment. Notwithstanding this, to the extent that a detriment arises it needs to be considered in the context of the Agreement’s broader terms and any undertakings provided.

Direction to take excessive annual leave

Clause 9(d) of Schedule 3 and clause 5.1(d) of Schedule 4 to the Agreement provide, in relation to a direction to take leave, that the Applicant will provide at least 28 days’ notice prior to the date an employee is required to commence leave. In comparison clause 21.6(b)(iii) of the Passenger Vehicle Award, clause 32.7(b)(iii) of the Clerks Award and clause 34.10(b)(iii) of the Manufacturing Award provide that employers must not require an employee to take a period of annual leave beginning less than eight weeks after the direction is given. The Commission raised a BOOT concern in relation to this detriment.

The TWU also raised a concern regarding the omission of conditions regarding the direction to take annual leave that are within the Passenger Vehicle Award (see clauses 21.5 – 21.7) including the requirement to confer and genuinely reach agreement, that the direction not leave the employee with less than 6 weeks’ accrual and that the period of leave to be taken not be less than a week.

The Applicant submitted that it has never directed an employee to take annual leave and provided the following undertaking to address the concerns:

‘15. Notice to take excessive leave

For the avoidance of doubt, prior to directing an Employee to take excessive annual leave under clause 9(d) of Schedule 3 or clause 5.1(d) of Schedule 4 to the Agreement, Greyhound will provide at least eight weeks’ notice prior to the commencement date of the leave and otherwise make the direction in accordance with the requirements of the otherwise applicable Award.’

I am satisfied that the undertaking resolves the concern.

Loaded Rates

Clause 10 of the Agreement deals with ‘Wages and Wage Related Matters’. Clause 10(a) of the Agreement states:

‘The hourly Base Rates of Pay applicable to the classifications are set out in Schedule 1 and 2 of this Agreement and will be paid for Ordinary Hours of Work’.

‘Base Rates of Pay’ is a defined term in the Agreement meaning ‘an Employee’s hourly rate of pay as specified under Schedules 1 and 2’. Each of the rates set out in Schedules 1 and 2 are higher than they are for their corresponding classification in the relevant award.

Clause 10(c) of the Agreement states:

‘Except as expressly provided for in this Agreement, the wages set out in this clause 10 compensate for all allowances, penalty rates, annal leave loading and other loadings to which the Employee would otherwise be entitled under the Awards or any other agreement or industrial instrument.’

The effect of clause 10(c) is that employees covered by the Agreement receive a ‘loaded rate’, although Schedule 4 to the Agreement provides specific entitlements to overtime and penalties for weekends and public holidays for CSO employees who would otherwise be covered by the Clerks Award.

The Commission raised the concern that while the Agreement provides for rates of pay that are higher than the base rates of pay in the Awards, there are a significant number of less beneficial terms in the Agreement that may have the effect that some employees in receipt of ‘loaded rates’ may not be better off overall. The TWU also raised a concern in this regard.

Particular concerns were raised in relation to the following:

Hours of work: Clause 6.1(a) of the Agreement provides that full time Drivers and Workshop employees are engaged to work 76 hours per fortnight plus four additional hours any time Monday to Sunday with a maximum of 14 hours per shift (see Clause 1(e) of Schedule 3). In comparison, clause 13.1(f) of the Passenger Vehicle Award provides that ‘ordinary hours exclusive of meal breaks must not exceed 10 hours in any one day’. The Commission and TWU raised the concern that the Agreement did not provide for overtime penalties for hours of work performed in excess of 10 hours per day.
Omitted penalties: Weekend penalties for Drivers and Workshop employees are included in the hourly rates in the Agreement. The Commission raised the concern that based on other detriments in the Agreement compared to the Award and the variables around potential rosters, the absence of weekend penalties may result in some employees not being better off. The Commission also raised the concern that employees engaged as Trades Assistants, Yardpersons or Storepersons may not be better off overall in the absence of weekend penalties. The TWU raised a concern that the following penalties in the Passenger Vehicle Award were omitted from the Agreement by virtue of clause 5.2(a):
oovertime penalty rates of 150% for the first 3 hours and 200% thereafter (clause 19.2);
oearly or late work penalty rates for work before 6.00am and after 7.00pm of 15% (clause 20.1(a));
oSaturday penalty rates of 150% and Sunday penalty rates of 200% (clause 20.1(a));
oSaturday penalty rates of 125% and Sunday penalty rates of 150% for two-up drivers (clause 20.2(a)).

Casual employees and loaded rates

Clause 6.3 of the Agreement provides for the employment of casual employees. As noted above, clause 10(c) of the Agreement provides for the payment of ‘loaded rates’ in compensation for all allowances, penalty rates, annal leave loading and other loadings to which the Employee would otherwise be entitled to under the Awards (except where the Agreement expressly provides otherwise). In the Loaded Rates in Agreements[1] decision the Full Bench observed that casual employment may consist of engagement under hourly or daily fixed term contracts and be used for the performance of short-term and/or intermittent work on an “on-call” basis and in this case a casual employee is not guaranteed work on any specified days or for any specified duration. The Full Bench said that in an enterprise agreement which provides or permits casual employment of this nature, it is difficult to envisage how it would be possible to provide for a loaded rate for casual employees that was capable of passing the BOOT because it would always be possible for the casual employee, in a given pay period, to be engaged to work on a day or at a time which would attract the payment of the penalty rates under the relevant award and not to be engaged on any other hours or at any other times. The Full Bench said that in that circumstance, if the agreement provided for a loaded rate which was less than the highest penalty rate provided for in the relevant award, the employee would be disadvantaged and this result could only be avoided if the agreement provided for some other benefit to the casual employee which offset the disadvantage, and/or imposed some restriction on when a casual employee could be engaged to work, and/or required the hours of work of a casual employee to be balanced over time between hours which would attract the payment of penalty rates under the relevant award and hours which would not.

The Agreement does not impose any restrictions in relation to the way in which casual employees can be engaged to work of the nature described above and the Commission raised the concern that, depending on hours of work, casual employees may not be better off overall.

The Commission also raised the concern that for casual employees covered by the Clerks Award, it did not appear that the penalties provided at Clause 1(f) of Schedule 4 are provided to employees on a cumulative basis and rates of pay were not high enough to compensate for these reductions.

The Applicant submitted:

‘it calculates pay rates for casual employees ‘in the same manner as is set out under the Award;’
‘That is the penalties are calculated cumulatively. For example a casual employee who would work at double time is paid, the double time rate plus the 25% casual loading;’
‘This is the case for all loadings / penalties set out in Clause 1(f) of Schedule 4’.

Notwithstanding this, the Applicant provided an undertaking to address the Commission’s concerns in the following terms:

‘16. Casual loading and penalty rates

For the avoidance of doubt, and consistent with its usual practice, Greyhound will apply the penalties provided at Item 1(f) of Schedule 4 to casuals in addition to the 25% loading referred to in clause 6.3(b) of the Agreement’.

Undertaking 4, dealt with below, is also relevant to addressing this concern.

Rosters

The Applicant provided rosters for the roles of Coach Captain, Leading Hand, Tradesperson, Yardperson and CSO attached as Annexures A1, A2 and A3 to the application. The Applicant also provided ‘Rostering Explanatory Notes’ at Attachment F to the application. It was submitted in the Rostering Explanatory Notes that the following factors should be taken into account by the Commission when reviewing the rosters:

To determine whether the Agreement passes the BOOT, the roster arrangements must be considered as a whole.
In relation to Drivers:
oset roster arrangements are determined by the operational requirements of each location;
oeach line on the master roster contains a pattern of driving shifts for a set fortnight;
oin terms of hours worked and the spread of those hours, the lines in a roster can vary;
oDrivers rotate through all lines on the relevant roster;
oa Driver who drives in accordance with Line 1 for a fortnight will then drive Line 2 and so on. A Driver who starts at Line 5 will then drive Line 6 and so on. When a Driver works the last line they will rotate back to Line 1 and the cycle will repeat;
oas a Driver rotates there may appear to be a detriment compared to the Award in respect of some lines when the lines are considered in isolation. However when the Driver works through the cycle of roster lines, they will receive the benefit of other lines that are more beneficial and those will offset any specific detriment they may experience;
othere are some locations where part-time Drivers are engaged and they are similarly rotated through all lines available on the relevant part-time roster;
oto determine BOOT compliance, the roster arrangements must be considered as a while, i.e. all lines on a continual rotating basis.
In relation to Coach Captains:
othe Applicant employs Coach Captains who operate out of Adelaide, Alice Springs, Brisbane, Cairns, Darwin, Melbourne, Rockhampton, Sydney, Toowoomba, and Townsville;
othe Coach Captain – Sydney roster was submitted as a part of the application as it represents the roster arrangement that is least beneficial in terms of uplift from the Passenger Vehicle Award and drivers in the remaining locations receive a greater benefit under the Agreement compared to the Passenger Vehicle Award.
In relation to CSO Employees, the rosters provided are indicative of roster arrangements for these employees.
In relation to Workshop Employees:
orosters are indicative of roster arrangements for these employees;
oeach employee works on a rotation through the rostered lines on an ongoing basis.

Having considered the explanation and rosters provided by the Applicant the Commission raised the concern that:

its modelling (which was provided to the parties) showed that employees covered by the Manufacturing Award and Clerks Award appeared to be better off overall than those awards based on the rosters provided by the Applicant, however some employees covered by the Passenger Vehicle Award did not appear to be better off overall, even when taking into account the full 12 week 6 line roster pattern;
as the rosters provided by the Applicant were not expressly prescribed by the Agreement, an employee who worked other roster patterns may not be better off overall when compared to the relevant award.

The Applicant provided further better off overall test results to the Commission and noted that it had identified issues with the Darwin rosters and created new rosters to address the issue which had been tested. It provided the results of its testing based on its rosters.

The TWU sought the calculations and roster data underpinning the Applicant’s results in respect of the Sydney and Carins depots.

Two individual bargaining representatives took issue with the Applicant’s calculations.

Mr Anthony Field, who represents certain employees who are drivers in Adelaide, correctly observed that the Applicant had not initially included the details of the hours of work upon which its calculations were based and undertook his own calculations in relation to what he says are actual hours of work for Drivers in Adelaide working in accordance with the Adelaide Line 1 roster. The calculations provided by Mr Field indicate that if employees work according to the pattern of hours reflected in Mr Field’s calculations, employees will be paid less under the Agreement than they would under the Passenger Vehicle Award in respect of those actual hours, applying Mr Field’s interpretation of the Passenger Vehicle Award. The calculations provided by Mr Field are different to the Applicant’s calculations in relation to that roster. Mr Field also noted that the Adelaide Line 4 roster was not a full time driver’s line as it only consisted of 51.5 hours for the fortnight and should not be included in the comparison provided by the Applicant (which compared full time rosters).

Mr Lang also provided calculations suggesting that drivers working certain shifts in Cairns are not better off overall. Mr Lang provided calculations indicating that Cairns drivers:

work 20 weekends over the course of an 8 week roster and receive $250.80 above the Passenger Vehicle Award per cycle;
also work four full weekends over the course of a 7 week roster giving rise to a detriment of $1,663.20 under the Agreement;

with the calculations suggesting a net detriment such that employees working in accordance with those roster arrangements in Cairns are not better off overall.

However the TWU indicated that it had performed revised calculations with respect to Cairns Roster Lines 1-4 over an 8 week period and that while it appeared that the Applicant had not accurately taken into account the Passenger Vehicle Award’s overtime and weekend penalty rates, it nonetheless calculated that Cairns Coach Captains were approximately $46 better off under the Agreement compared to Grade 4 Drivers under the Award over that 8 week roster period. The TWU sensibly suggested that given the inaccuracies identified in the calculations it may be prudent for the Applicant to provide further revised calculations.

Mr Lang also provided calculations suggesting that drivers working certain shifts in Townsville and Rockhampton are not better off overall if working in accordance with those arrangements.

The Commission requested further information to understand the data underpinning the BOOT modelling that the Applicant had provided and the Applicant provided an excel file in response to this request.

Mr Lang took issue with the further calculations provided in relation to Lines 423-478 of the Cairns roster. In particular, Mr Lang submitted:

clause 13.1(f) of the Passenger Vehicle Award provides that ‘ordinary hours exclusive of meal breaks must not exceed 10 hours in any one day’ and it would appear from the calculations provided by the Applicant that in relation to the 454/404 roster 11 hours had been calculated at normal time and 1.5 hours had been calculated at 115% when 10 hours should have been calculated at normal time and 2.5 hours should have been calculated at 150% in accordance with the overtime provisions in the Passenger Vehicle Award;
the 456/406 shift is in practice a 12.5 hour shift with one unpaid break per shift however the Applicant had instead calculated this shift to include 11.5 hours of work with three unpaid meal breaks. Mr Lang submitted that the time reflected as break between 4.30pm and 5pm in the calculations is in practice not a break and is used to disembark passengers and their luggage and then to reload passengers and luggage for the return journey;
the calculations propose an annual income of $75,938.59 under the Agreement however Mr Lang’s calculations suggest that the equivalent payment under the Passenger Vehicle Award is $80,463.63 resulting in a 5.96% shortfall.

In relation to the Applicant’s calculations provided in relation of the Townsville rosters, Mr Lang submitted:

with reference to Lines 1127 and 1130, clause 13.1(f) of the Passenger Vehicle Award provides that ‘ordinary hours exclusive of meal breaks must not exceed 10 hours in any one day’ and it would appear from the calculations provided by the Applicant that in relation to the 454 roster in respect of an 11 hour day 6.5 hours has been calculated at normal time and 4.5 hours has been calculated at 115% when under the Award 3.5 hours should have been calculated at 115% and one hour in excess of 10 hours should have been calculated at 150%;
with reference to Line 1132, clause 13.1(f) of the Passenger Vehicle Award provides that ‘ordinary hours exclusive of meal breaks must not exceed 10 hours in any one day’ and it would appear from the calculations provided by the Applicant that in relation to the 402 roster in respect of a 12 hour day, 6.5 hours has been calculated at normal time and 5.5 hours has been calculated at 115% when 3.5 hours should have been calculated at 115% and the 2 hours in excess of 10 hours should have been calculated at 150%.
with reference to Lines 1185 and 1234, the Sunday 454 Rockhampton service should have been calculated at 200% for the 11 hour shift for a total of $598.18 however the calculations attribute a $246.41 value, resulting in a shortfall of $351.77.

In relation to the Applicant’s calculations for the Brisbane roster in relation to Line 228, in relation to a 12 hour day, Mr Lang submitted that 7.5 hours have been calculated at normal time and 4.5 hours have been calculated at 115% when 2.5 hours should have been calculated at 115% and 2 hours (being the 2 hours in excess of 10) should have been calculated at 150% under the Passenger Vehicle Award overtime provisions.

Mr Lang submitted that what appear to be calculation errors, such as those he had identified above, are scattered at random throughout the Applicant’s calculations such that the Passenger Vehicle Award had not been properly applied in the calculations.

Having regard to the discrepancies regarding the Applicant’s rostering practices from the perspective of Mr Lang and the Applicant, it became apparent that contemplation of rostering arrangements outside of those modelled by the Applicant may need consideration. The Applicant itself, in the course of reviewing its calculations, became aware of a detriment affecting Drivers working out of Darwin that had not previously been contemplated in the calculations, resulting in the provision of an undertaking to deal with this (Undertaking 4A).

Mr Lang provided additional calculations based on the ‘Local Live Roster’ which he said was in operation in Cairns. Mr Lang’s calculations indicated that while employees were paid more than the Passenger Vehicle Award in respect of shorter shifts worked Monday – Friday, they were often paid less in respect of weekend and public holiday shifts. Mr Lang submitted that this had the result that Drivers performing longer shifts that include weekend and public holiday shifts may not be better off overall under the Agreement. Mr Lang provided modelling in respect of an 8 week current roster applying in Cairns which depicts that employees would receive almost 1% more in wages under the Passenger Vehicle Award than the Agreement. Mr Lang also provided calculations in relation to a new roster to run in Cairns from mid-December depicting that employees would receive 1.25% more in wages under the Passenger Vehicle Award than the Agreement. A later iteration of Mr Lang’s calculations depict the gap as being 2.29%.

Mr Lang also identified errors in the Cairns rosters modelled in the Applicant’s calculations, submitting that the 456/406 shift was allocated 11.5 hours in the Applicant's calculations whereas in practice the shift length is 12.5 hours.

It is apparent that:

there is a disagreement between Mr Lang and the Applicant as to whether certain times that do not involve driving constitute breaks or working time and how this time should be paid;
Mr Lang also contests the number of unpaid breaks that the Applicant is entitled to roster in relation to a shift;
Mr Lang and the Applicant have competing views about the rosters used in modelling and the rosters applied in practice;
Mr Lang and the Applicant have competing interpretation of provisions within the Passenger Vehicle Award.

Noting the contest of views between the parties, consideration turned to whether the Commission’s BOOT concerns could be resolved by way of an undertaking in the form of a reconciliation term to ensure that employees are better off under the Agreement as compared to the Award.

‘Undertaking 4’ '

In addition to its calculations, the Applicant had initially provided a draft undertaking to the following effect:

‘(a)Rosters will not be implemented which would result in an Employee not being better off under the terms of the Agreement than under any otherwise applicable Award, as in force at the time of the approval of the Agreement;

(b) Greyhound will periodically, but not less than every four months, review Employee rosters to confirm compliance with (a); and

(c)If issues are identified via an audit in (b), Greyhound will implement steps required to ensure the Employee is better off under the terms of the Agreement than under any otherwise applicable Award.’

In light of the concerns raised by the individual bargaining representatives undertaking calculations in respect of their actual hours showing that employees in these circumstances were not better off, I considered that an undertaking would be necessary to address the concern.

The Commission brought relevant Full Bench authorities to the attention of the Applicant and raised a concern about the undertaking provided by the Applicant. In particular, the Commission raised that:

it was unclear whether the proposed undertaking provides an enforceable right to a reconciliation payment in the event that an amount paid to the employee was not greater than what an employee would have received under the relevant award;
it appeared that the Applicant’s consideration as to whether or not an employee is better off overall may only arise twice a year and in circumstances where an employee is not better off overall this may result in delay in payment to an employee; and
the undertaking appeared to provide that an employee is to be paid ‘no less’ than what they would receive under the Award and does not guarantee they will actually be better off.

The TWU made submissions in relation to the undertaking and helpfully identified the following considerations arising from the Full Bench decisions referred to by the Commission:

In relation to SDA v Beechworth Bakery Employee Co Pty Ltd[2] [2017] FWCFB 1664:
oan undertaking that does not create an enforceable right to payment to ensure that employees are better off overall but is conditional on an employee making a request for review will not likely meet a concern that an agreement does not pass the BOOT;[3]
oan employee’s consideration that they are not better off overall that arises by a reference to a four month period means that any review that might be conducted would only occur three time a year and may result in a delay in payment to the employee, the potential length of which may be unknown. In these circumstances it is not apparent that an undertaking providing for a 1.5% increase in payment may compensate an employee such that they are better off overall[4]
In relation to the Loaded Rates Agreements Case:[5]
othe BOOT requires every existing and prospective award covered employee to be better off overall;
oif a class of employees to which a particular employee belongs would be better off, the Commission is permitted to assume, in the absence of evidence to the contrary, that the employee would be better off overall;
othe application of the BOOT will require an examination of practices and arrangements in relation to the working of ordinary and overtime hours which will likely require classes to be identified based on common patterns of working hours;
oan assessment may involve examination of existing roster patterns worked by various classes of employees at the test time;
othe Commission may be in a position to make sensible predictions about the basis upon which prospective employees might be engaged based on roster patterns worked by existing employees;
othe BOOT involves the making of an overall assessment as to whether an employee would be better off under the agreement, which necessitates identification of the terms in the agreements which are more and less beneficial to the employee;
othe overall assessment required will essentially be a mathematical one where the terms being compared relate directly to remuneration. The assessment will be more complex where the agreement contained some superior entitlements which are non-monetary in nature, accessible at the employee’s option or which are contingent upon specified events occurring;
oin respect of non-monetary, optional or contingent entitlements in an agreement, the assumption cannot readily be made that they have the same value for all employees. In the case of a contingent benefit, it will be necessary to make a realistic assessment about the likelihood of the benefit crystallising during the period in which the agreement will operate;
owhere a loaded rates agreement results in significant financial detriment compared to the relevant award it is unlikely that a non-monetary, optional or contingent entitlement under the agreement will sufficiently compensate for the detriment for all affected employees such as to enable the agreement to pass the BOOT;[6]
o“make good” provisions do not provide any answer to any concern about passing the BOOT which may be identified where the provision only operates upon an employee request for a pay comparison and where the provision does not provided for the employee to be better off overall but only requires any “shortfall” in remuneration compared to the award to be paid.[7]

In relation to Commonwealth Bank of Australia:[8]
othe reconciliation provided for under the term must be initiated by the employer and confer a legal entitlement on employees to receive relevant payments that are sufficient to ensure all employees remain better off overall than would be the case if the relevant award applied to them;[9]
oit was noted in that case that if an employee ceased to be covered by the Agreement the review period would end and the employer would be required to conduct a reconciliation and make payment. Further, employees were able to request a review at any time if their circumstances changed and they believed they would have been paid more had the award applied to them;[10]
othe specific formula used to make reconciliation payments did not ensure employees who received less remuneration during the review period would be better off overall;[11]
ohowever an undertaking by which payment made to an affected employee would include any shortfall plus 5% addressed the Full Bench’s concern that the reconciliation formula would not render affected employees better off overall;[12]
oif certain employees were to be systematically worse off, reliance on a top up payment every six months would not necessarily result in those employees being better off overall;[13]
ohowever a premium payment that not only exceeded a shortfall but did so by a significant margin might be sufficient to offset a late payment detriment;[14]
oit is also necessary to consider non-monetary benefits and detriments under the agreement and relevant awards and evidence about the employer’s working arrangements is relevant to the Commission’s assessment.[15]

Having regard to the above, the TWU submitted that there was a potential need to amend the undertaking such that:

if an employee ceased to be covered by the Agreement, the Applicant will conduct a reconciliation and make payment;
employees may request a review at any time if their circumstances change and they believe they would have been paid more had the Award applied to them, in addition to the employer-initiated review process every four months as proposed in the draft undertaking; and
a payment made to address any shortfall included an additional margin of at least 5%.

This resulted in the provision of Undertaking 4 in its final form referred to above in this decision and the views of the bargaining representatives on the final form of the undertakings were sought. In addition to the TWU, there were 10 employee bargaining representatives. The TWU supported approval of the Agreement with the final form of the undertakings and of the remaining bargaining representatives, Mr Lang raised concerns in relation to the final form of the undertakings provided by the Applicant.

By way of summary Mr Lang submitted:

the additional 5% payment in the undertaking in addition to an identified shortfall ‘amounts to nothing in the overall scheme of things’;
clause 16.3 of the Passenger Vehicle Award provides that ‘All earnings, including overtime, must be paid within 2 days of the expiration of the pay period in which they accrue’ and if an employee has an issue with their pay under the Passenger Vehicle Award they have a right to have it addressed as soon as possible;
few employees will exercise their rights to request a review of their roster;
the Applicant has not provided accurate data to demonstrate that the Agreement passes the BOOT. Mr Lang also took issue with certain allowances not being included in the Applicant’s modelling including tool, uniform and meal allowance. In particular:
oin relation to uniform allowance Mr Lang submitted that the uniform allowance in the Passenger Vehicle Award should be included in the calculations as drivers supply footwear and maintain a company supplied uniform;
oin relation to meal allowance Mr Lang noted that clause 17.3(d)(ii) of the Passenger Vehicle Award provides that the employer will either reimburse the employee for reasonable costs incurred by the employee when living away from home or provide accommodation and all meals. Mr Lang submitted that reasonable costs should be paid for at the amount of $15.29 in accordance with clause 17.3(a) of the Passenger Vehicle Award which provides:

‘A meal allowance of $15.29 will be paid to employees who work more than 2 hours’ overtime beyond their ordinary finishing time’;

oin relation to tool allowance Mr Lang noted that the Applicant includes the Tool Allowance under the Agreement in its BOOT calculations and submitted that ‘the Tool Allowance should continue to be paid but not as income to the Driver and therefore should not be included in the BOOT’ on the basis that ‘Drivers had spend the funds to purchase the tools in the first place’ and ‘$0.03 per hour is reimbursement for the investment Drivers have made in order to meet a condition of employment’;

employees have a right to expect that the Agreement is a complete document and should not have to go to ‘Fair Work’ to continually get things sorted out.

As noted earlier in this decision, Undertaking 4 has the effect of preventing the Applicant from rostering work in a way has the effect that an employee is not better off under the terms of the Agreement than under any otherwise applicable Award and in circumstances where this is not the case, requires the Applicant to make up the shortfall and pay an additional 5%. It is apparent that the Applicant and Mr Lang may have competing understandings about whether the manner in which the Applicant organises work does in fact give rise to an outcome that would see employees better off overall under the Agreement than the Award giving rise to risk of disputation however as I have noted, in circumstances where there is a dispute about the application of the clause the dispute resolution term of the Agreement (clause 28) allows for a party to refer a dispute to the Commission for arbitration following exhaustion of the steps in that process. Further, I am satisfied that Undertaking 4 does operate to ensure that the Applicant rosters work in a way that employees under the Agreement are better off overall.

In relation to Mr Lang’s concerns regarding the inclusion of allowances for the purposes of the Applicant’s BOOT calculations the Applicant submitted:

in relation to uniform allowance:
oclause 17.3(c) of the Passenger Vehicle Award provides ‘an employee required to wear a uniform (including boots or other required footwear) will be reimbursed for all reasonable and necessary costs incurred in purchasing that uniform if the uniform is not provided by the employer’ (Applicant’s emphasis);
othe Applicant supplies uniforms to employees and as such the Passenger Vehicle Award entitlement would not apply and therefore is not relevant to a BOOT comparison;
othe Applicant does not require particular boots or footwear and as such the Passenger Vehicle Award entitlement is not relevant to a BOOT comparison;
oclause 5.7 of Schedule 4 to the Agreement provides for a protective clothing and uniform allowance, which applies in all cases, including where an allowance would not be payable under the Passenger Vehicle Award and as such the Agreement is more beneficial than the Passenger Vehicle Award;
oMr Lang’s concern regarding uniform allowance can be disregarded as an issue that affects the BOOT;
in relation to the meal allowance while living away from home:
othe Applicant did not agree with Mr Lang’s interpretation of the cause 17.3(d) of the Passenger Vehicle Award. The Applicant submitted that clause 17.3(d)(ii) of the award requires the employer to either reimburse the employee for reasonable costs incurred by the employee when living away from home or to provide accommodation and all meals. The Applicant submitted that this entitlement only applies to those meals unable to be taken at home and only if the employer does not provide those meal, as distinct from clause 17.3(a) which entitles employees to a meal allowance when working unrostered overtime;
owhile it does not agree with Mr Lang’s interpretation, for the purposes of progressing the matter it also tested Mr Lang’s roster by applying two meal allowances under clause 17.3(d)(ii) in circumstances where Mr Lang would have received reimbursement under clause 17.3(d)(ii) and even with this additional amount Mr Lang’s roster satisfied the BOOT;
in relation to the tool allowance,:
oit does not agree with Mr Lang’s submissions;
oa Tool Allowance provided in clause 5.5 of Schedule 5 to the Agreement is paid yearly to Drivers regardless of whether they buy or upgrade new tools and there is no tool allowance provided for in the Passenger Vehicle Award;
othe Tool Allowance should be included in the BOOT analysis and provides an additional entitlement in comparison to the Passenger Vehicle Award.

Conclusion regarding better off overall test

I have considered the undertakings as provided by the Applicant in their final form on 28 November 2023 which are attached at Annexure A of this decision (Undertakings), together with the terms of the Agreement, including the benefits and detriments in the Agreement as compared to the Awards. The TWU supports the approval of the Agreement with undertakings and I have considered the views of the other bargaining representatives, including but not limited to the views of Mr Lang who remains opposed to the Agreement’s approval, notwithstanding the undertakings provided by the Applicant. I am satisfied that acceptance of the Undertakings, which would be enforceable as terms of the Agreement, would mean that the Agreement passes the BOOT.

I am satisfied that the effect of accepting the Undertakings is not likely to cause financial detriment to any employee covered by the Agreement.

There are 19 undertakings in total. While this is an unusually large number of undertakings, I note that a substantial number of those undertakings are merely intended to reflect the Applicant’s intended application of the Agreement and in some cases interaction with the NES. I am satisfied that effect of accepting the undertakings is not likely to result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Other concerns raised in relation to the Agreement

Mr Lang also raised a number of concerns not otherwise addressed above.

Current practices regarding breaks

In his Form F18A Mr Lang stated, by way of summary:

Currently many rostered shifts have more than one unpaid break during the shifts and some shifts have up to three half hour unpaid breaks. Mr Lang suggested that during those unpaid breaks drivers are on the road and still responsible for the bus and passengers assigned to it.
Mr Lang suggested that in respect of these breaks drivers are still working, on a required fatigue break and are unable to return home for that period.
The issue of unpaid breaks was brought up during the negotiation phase and a request was made for a review of all run sheets to ensure pay accuracy with respect to work periods and this request was declined by the Applicant.
There is inconsistency across run sheets in regard to the number of unpaid breaks per shift which ‘is discriminatory.’

Mr Lang specifically raised that Drivers in Cairns have a shift split into four sections with three unpaid breaks.

In relation to the above concerns the Applicant submitted that these do not appear to relate to the proposed Agreement and it denied the allegations raised. The Applicant submitted that to the extent that Mr Lang has concerns about his working arrangements this should be addressed through the business as an operational issue.

The above points raised by Mr Lang appear to relate to a question as to how current practices concerning unpaid breaks should be dealt with. These considerations are not relevant to the matters in ss. 185, 186, 187, 188 and 190 that I am to have regard to in determining the application however I note that if Mr Lang has a concern that the current agreement that applies to him is not being applied correctly or in relation to his pay there are other avenues available in which he can pursue those concerns.

Fatigue management

Mr Lang raised a concern that clause 2 of Schedule 3 to the Agreement referred to an ‘unpaid meal break’ and under fatigue management guidelines drivers are required to take a ‘fatigue break’ of between 15 minutes and 1 hour, not a ‘meal break’.

The Applicant submitted that the clause is expressed to be subject to the requirements of applicable state and federal transport legislation, which will apply to the extent of inconsistency.

To the extent that fatigue management requirements, where legislated, are inconsistent with the provisions of clause 2 of Schedule 3 to the Agreement it is apparent from the text of clause 2(a) of Schedule 3 to the Agreement that it is not intended to circumvent fatigue management laws.

Claims not agreed during bargaining

Mr Lang also expressed concern:

·   that a request for definitions of ‘Fatigue Break’, ‘Meal Break’ and ‘Refreshment Break’ to be included in the Agreement was made and declined;
·   that a request was made for a clause to provide for Part Time Drivers to transition to Full time after working full time hours for 12 months was denied;
·   that back pay was excluded from the Agreement and although the Applicant offered to pay back pay to 7 August, there is a period between 3 July and 6 August where employees will be paid less than the Passenger Vehicle Award;
·   about the Applicant’s 3 percent pay offer.

The Applicant submitted that these issues relate to the bargaining process and not the approval of the Agreement by the Commission. I note that to the extent that Mr Lang or other bargaining representatives may have made claims during the bargaining process that were not accommodated, this fact in itself does not provide a ground for dismissal of the application.

Conclusion

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Transport Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 February 2024. The nominal expiry date of the Agreement is 21 February 2028.

COMMISSIONER

Annexure A

[1] [2018] FWCFB 3610 at [121].

[2] [2017] FWCFB 1664.

[3] [2017] FWCFB 1664 at [42] – [45].

[4] [2017] FWCFB 1664 at [45].

[5] [2018] FWCFB 3610.

[6] [2018] FWCFB 3610 at [115].

[7] [2018] FWCFB 3610 at [139].

[8] [2021] FWCFB 3635.

[9] [2021] FWCFB 3635 at [21].

[10] [2021] FWCFB 3635 at [22].

[11] [2021] FWCFB 3635 at [23].

[12] [2021] FWCFB 3635 at [24].

[13] [2021] FWCFB 3635 at [26].

[14] [2021] FWCFB 3635 at [26].

[15] [2021] FWCFB 3635 at [26].

Printed by authority of the Commonwealth Government Printer

[2024] FWCA 682

21 FEBRUARY 2024