Hornibrook Bus Lines Pty Ltd
[2024] FWCA 3834
•1 NOVEMBER 2024
| [2024] FWCA 3834 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Hornibrook Bus Lines Pty Ltd
(AG2024/3611)
HORNIBROOK BUS LINES ENTERPRISE AGREEMENT 2024
| Passenger transport industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 1 NOVEMBER 2024 |
Application for approval of the Hornibrook Bus Lines Enterprise Agreement 2024
Introduction
Hornibrook Bus Lines Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hornibrook Bus Lines Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Passenger Vehicle Transportation Award 2020 (the Award).
Regulation 2.06 Requirements
The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
Additional annual leave entitlement for shiftworkers
The Agreement is silent in relation to the definition of a shiftworker. The Award contains a definition of a shiftworker in clause 21.2. Section 196 of the Act requires the Agreement to define or describe employees who are shiftworkers within the meaning of that term in the Award for the purposes of the National Employment Standards (NES). The Employer provided an undertaking addressing this issue. I note that shiftworkers who are covered by the Agreement are entitled to 5 weeks of paid annual leave for each year of service pursuant to s.87(1)(b) of the Act although this is not referred to in the Agreement.
Stand Down Provisions
The stand down provision at clause 26.4 of the Agreement confers an ability to stand down employees due to business downturn. This is more expansive than what is permissible under s.524 of the Act. The Employer provided an undertaking addressing this concern.
NES precedence term in clause 6.1 of the Agreement
Clause 51.11 of the Agreement provides that if the employee fails to give the required notice of termination to the employer, the Employer has the right to withhold an amount that is equal to the period of notice not given from an employee’s termination pay.
Clause 51.11 does not appear to limit the source of monies which may be deducted. This could permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination) which is inconsistent with the NES. I note that in accordance with the NES precedence term in clause 6.1 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Rosters
Clause 18 of the Agreement deals with rosters. Clauses 18.1-18.14 provide as follows:
18.1 Permanent employees covered by this Agreement shall work in accordance with a regular roster.
18.2 Ordinary hours will be rostered over 5 days between Monday and Friday.
18.3 Saturday and Sunday will be voluntary rostered overtime in accordance with clause 18.15.
18.4 Public Holidays will be voluntary rostered overtime.
18.5 An Employee’s Duty shall be rostered so as to allow a minimum 10-hour break between rostered shifts and to comply with the National Heavy Vehicle Regulator Regulations breaks.
18.6 Employees shall be rostered to commence and finish each day’s duty at the same depot or by agreement with the Employee at an alternative location.
18.7 Rosters may be structured over a weekly period subject to the stipulations of clause 15.
18.8 The Employer shall develop rosters in consultation with the drivers’ representatives of the Consultative Committee.
18.9 The Employer shall provide the Employee with such roster and shall use its best endeavours to provide shift structures which recognise an Employee’s preference.
18.10 Each roster shall be structured in accordance with the provision of clause 15 and shall specify the scheduled start and finish time each day, the Employee’s normal operating location including which days of the week that are required to be worked and when breaks in work are to occur.
18.11 Subject to the exceptions listed in clause 15, rosters may be structured in any of the following ways:(a) Every day as a continuous shift; (also known as a Straight shift).
(b) Every day as a non-continuous shift (also known as a Broken or Split shift).
18.12 All known rostered duty, which may include broken shifts and days off, will be displayed at least 7 days before the start of the rostered duty.
18.13 Where there are insufficient drivers to operate a particular shift, it is agreed that the Employer shall make or amend a roster in accordance with its operational requirements.
18.14 Notwithstanding anything in clauses 18.1 to 18.13, the parties agree that the operational requirements of the Employer will be paramount when settling all rosters.
Submissions
The Transport Workers’ Union of Australia (TWU) was a bargaining representative for the Agreement. The TWU submitted that clause 18.14 of the Agreement affords the Employer ultimate discretion with respect to roster notice periods and the setting of rosters. The TWU submitted that there is no such discretion available to employers in the Award, which requires employers to comply with notice requirements. The TWU submitted that clause 18.14 of the Agreement allows the employer to roster employees without appropriate notice as required by clause 13.2 of the Award. The TWU is of the view that an undertaking should be required which provides that clause 18.14 of the Agreement can only be applied subject to notice requirements in clause 13.2 of the Award
The Employer submitted that clauses 18.1–18.14 are legacy provisions which have been negotiated over many years with the TWU and others to ensure fairness for employees and the Employer in rostering. The Employer submitted that it performs services pursuant to a contract with Translink who determines the timetables that the Employer must operate. The Employer also relies upon other provisions of the Agreement which set out further consultation processes which occur when rosters need to be changed and contends that the consultation committee referred to in those provisions is an important part of that process. The Employer submits that there are many protections already available to employees when roster changes occur which address the concerns raised by the TWU.
Consideration
Clause 18.14 is not a new provision. The reference to the ‘operational requirements of the Employer [being] paramount when settling all rosters’ has been a feature of all predecessor agreements covering employees and employers since the Hornibrook Bus Lines Enterprise Agreement 2009 was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and approved by Fair Work Australia (as the Commission was then called) on 19 February 2010. This means that clause 18.14 has not been regarded as resulting in employees being worse off compared to the Award (after it commenced on 1 January 2010) by the Commission when considering whether to approve these predecessor agreements. Although I am not bound to follow decisions of the Commission approving predecessor agreements, these decisions have informed my consideration of this matter.
In my view, clause 18.14 does not permit the Employer to change rosters without notice. Rather it means that when rosters are ‘settled’ or ‘finalised’, the operational requirements of the Employer are the most important consideration. This does not mean that the operational requirements of the Employer are the only consideration. The Employer properly concedes that it cannot change rosters without following the ‘Change to regular roster or ordinary hour of work’ provisions at clause 48.10 of the Agreement which includes consideration of the impact of any change on employees including any impact in relation to their family or caring responsibilities. It would be difficult to envisage a situation where the requirements of clause 48.10 could be satisfied in less than 24 hours, which is the minimum period that changes to the roster must be notified to employees under clause 13.2(b) of the Award.
Taking all of these considerations into account, I believe that the practical consequences of clause 48.10 of the Agreement result in clause 18 of the Agreement being consistent with clause 13.2(b) of the Award. As such, clause 18.14 does not result in employees being worse off under the Agreement and no undertaking from the Employer is required.
Section 190 Undertakings
The Employer provided written undertakings. A copy of the undertakings is attached in Schedule B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Sections 186, 187, 188 and 190
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The TWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement.
In accordance with s.201(2), I note that the Agreement covers the TWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2024. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
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