Jane McIntyre

[2018] FWC 5013

[2018] FWC 5013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Jane McIntyre
(AG2018/2305)

COACHTRANS AUSTRALIA SCHOOL BUS OPERATIONS ENTERPRISE AGREEMENT 2009

[AE873333]

Passenger vehicle transport (non rail) industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 29 AUGUST 2018

Application for termination of the Coachtrans Australia School Bus Operations Enterprise Agreement 2009 – enterprise agreement not terminated – application dismissed.

[1] Jane McIntyre (the applicant) has applied to terminate the Coachtrans Australia School Bus Operations Enterprise Agreement 2009 (the enterprise agreement) in accordance with s.225 of the Fair Work Act 2009 (the FW Act).

[2] The enterprise agreement was approved by Fair Work Australia (as the Commission was then called) on 22 January 2010. Its nominal expiry date is 30 November 2013.

[3] If the application is granted, the employees would be covered by the Passenger Vehicle Transportation Award 2010 (the Modern Award). The main practical difference between the enterprise agreement and the Modern Award is that the former provides for a minimum daily engagement of three hours, which can be worked in two separate shifts, while the latter provides a minimum engagement per day of one (continuous) two-hour shift in relation to the type of work performed by the relevant employees.

[4] Subdivision D of Division 7 of Part 2-4 of the FW Act deals with the termination of enterprise agreements after their nominal expiry date. It provides as follows:

‘225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)  one or more of the employers covered by the agreement;

(b)  an employee covered by the agreement;

(c)  an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a)  the FWC is satisfied that it is not contrary to the public interest to do so; and

(b)  the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i)  the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii)  the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.’

[5] Metro Coach Pty Ltd (the employer) is a door-to-door, specialised bus transport service for children with disabilities travelling to and from the Southport and Mudgeeraba Special Schools.

[6] The employer has had contracts with the Queensland Department of Transport and Main Roads (the Department) to provide these services since February 2009. This contract ends in December 2019. There are 28 buses servicing the two schools. There are 71 casual employees employed as Bus Drivers and Passenger Assistants. The average age is 64, with 24 employees over the age of 70. Many employees receive a pension or an allowance in addition to their wages.

[7] The contract with the Department does not allow children to spend any longer than one hour and 15 minutes on the bus each morning and afternoon. The depot is located 10 minutes from the largest special school on the Gold Coast. This allows for the structure of bus runs with, generally, the following parameters:

•  10 minutes travel to the first child pick up point;

•  75 minutes from the first child pick up point to arrival at the school

•  5 minutes to unload children

•  10 minutes to return to the depot (a total run of 100 minutes).

[8] The applicant said that she considers a minimum of two hours per engagement as a small compensation for her travel time and costs. She also said that it would be beneficial for her to have four guaranteed hours of work per day. I note that there is nothing in the Modern Award that would provide such a guarantee; though an employer may choose to roster an employee for both a morning and afternoon shift, this is not an award requirement. Indeed, the employer submitted that if the Modern Award applied, some employees would be engaged for only the required minimum of one two-hour engagement per day.

[9] Six other employees indicated to the Commission that they support the application. A number of these appear to assume that being covered by the Modern Award would mean that they would be guaranteed at least four hours’ pay a day.

[10] 50 employees indicated to the Commission that they oppose the application and wish to continue working under their current arrangements.

[11] The employer said, and I accept, that the wages component of their business is much larger than that of most school bus transport companies, because its contract with the Department requires two staff per vehicle – Bus Driver and Passenger Assistant. If it was required to pay for non-productive time, this would affect the quality of service it provides and could threaten the financial viability of the business.

Consideration

[12] In general, I would be reluctant to reject an application to terminate an enterprise agreement that was so far past its nominal expiry date. However, each application must be considered on its merits.

[13] Leaving aside the issue of minimum engagement, the age of the enterprise agreement does not of itself mean that the employees (who are all employed as casuals) are being disadvantaged vis-à-vis the Modern Award. In particular, I note they receive the Modern Award rates of pay. There are no other conditions that are obviously ‘out of date’.

[14] The applicant and the other employees supporting the application seem to assume they would be guaranteed a minimum of four hours’ pay a day if the Modern Award applied. That is not correct. The Modern Award only guarantees two hours’ pay for each day an employee works, compared to three hours under the enterprise agreement. The difference is that those two hours under the Modern Award must be worked continuously, whereas the three hours under the Enterprise Agreement can be broken into two shifts.

[15] It is reasonable in a case like this to have regard to the nature of the workforce. A large proportion of the workforce appears to be semi-retired, and they use their work for the employer to supplement their retirement income.

[16] It is also reasonable to have regard to the specialised nature of the business of the employer. In this case, I am concerned that granting the application may be detrimental to the service provided to a group of vulnerable children and their families. I am not satisfied, however, that I have sufficient information to conclude that granting the application would be contrary to the public interest and I do not so find.

[17] Clearly, the employer opposes the application. At the very least, granting the application – which would mean that the employer would have to pay for a significant amount of unproductive time – would have a detrimental effect on its business.

[18] Just as clearly, a substantial majority of the employees also opposes the application. This is an important consideration in a case such as this.

[19] It is hard to know what the effect of granting the application would be on employees, something that no doubt weighed on the minds of those employees who opposed the application. Some may indeed receive additional remuneration. However, others may receive significantly less, especially if they go from two shifts per day to one, as flagged by the employer and permitted by the Modern Award.

[20] In all the circumstances, I do not consider that it would be appropriate to terminate the enterprise agreement.

Conclusion

[21] I decline to terminate the enterprise agreement. The application is dismissed.

SENIOR DEPUTY PRESIDENT

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