Jarman Ace Pty Ltd t/as Ace Buses

[2014] FWCA 3338

[2014] FWCA 3338 [Note: An appeal pursuant to s.604 (C2014/4889) was lodged against this decision - refer to Full Bench decision dated 28 October 2014 [[2014] FWCFB 7097] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Jarman Ace Pty Ltd t/as Ace Buses
(AG2014/5151)

ACE BUSES ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 23 MAY 2014

Application for approval of the Ace Buses Enterprise Agreement 2014 - whether agreement meets the Better Off Overall Test (BOOT) - Union objection - - rates of pay for single engagements - undertakings proposed - ‘exceptional circumstances’ and public interest if Agreement does not meet the BOOT - agreement approved with undertakings - agreement would also be approved under s 189 of the Act.

[1] This decision concerns an application filed by Jarman Ace Pty Ltd (the ‘applicant’), which seeks the approval of a single enterprise agreement to be known as the Ace Buses Enterprise Agreement 2014 (the ‘Agreement’). The application, filed on 1 April 2014, is made pursuant to the provisions of Part 2-4 of the Fair Work Act 2009 (the ‘Act’). The Agreement is to cover 69 casual employees, engaged as Bus Drivers, who transport physically and intellectually disabled school aged children between their homes and their school, Bus Supervisors, one of whom must accompany the Bus Driver on all trips and administration staff.

[2] It is useful to set out the unusual conditions applying to the applicant’s Bus Drivers when compared to Bus Drivers engaged in the general transportation of passengers.

(a) The applicant has no depot from which the Drivers take the bus and return after their shift. Each Driver is provided with a bus which is garaged at their home. They commence their shift from home and return home after their shift. Bus routes are determined by taking into account the first student’s pick-up address closest to the Driver’s home.

(b) The Drivers must always be accompanied by a Bus Supervisor when performing their duties. The Driver and the Supervisor make their own arrangements to meet at the commencement of their shifts. They are usually allocated based on the closeness to each other’s homes.

(c) The Driver collects no fares from the passengers and does not validate a passenger’s pass or ticket.

(d) The number of disabled passengers on each bus is limited (6-14).

(e) The Driver is responsible for maintaining the cleanliness of the bus, but not its ongoing maintenance or repairs.

(f) The Driver may, with permission, use the bus for limited personal purposes.

(g) Some of the Drivers also work at the school (primary employment) which they transport students to and from.

[3] In the Employer’s statutory declaration in support of the application (Form F17), Ms Jane Stevens, Director, identified the following awards as the relevant reference instruments for the purposes of the Better Off Overall Test (BOOT):

• Passenger Vehicle Transportation Award 2010 [MA000063];



• Clerks - Private Sector Award 2010 [MA000002];



• Motor Drivers, etc., Award - Southern Division 2003 [AN140182]; and



• Clerical Employees Award State - 2002 [AN140067].

Ms Stevens said that the terms and conditions under the Agreement were more beneficial in respect to Wage Rates and Hours of Work. The Hours of Work contention relates to the bus being home garaged (see para [2] above).

[4] The rates of pay were detailed in a comparison as follows:

Agreement Classification	Reference Instrument	Corresponding Award Classification	Corresponding Award Rate (inc 25% loading) Since 1 July 2013	Enterprise Agreement Rate (inc 25% loading)
Bus Driver	Passenger Vehicle Transportation Award 2010	Grade 2	$22.62	$23.60
Bus Supervisor	Passenger Vehicle Transportation Award 2010	Grade 1	$22.08	$22.20
Administration Assistant - Level 1	Clerks - Private Sector Award 2010	Level 1	$21.76 for Year 1 22.84 for Year 2 $23.55 for Year 3	$22.00 $23.00 $24.00
Administration Assistant - Level 2	Clerks - Private Sector Award 2010	Level 2	$23.83 for year 1 $24.27 for Year 2	$25.00

[5] In answer to question 3.5 whether there are any less beneficial terms in the Agreement compared to the Awards, Ms Stevens said:

‘Please note that an analysis of the arrangements under this Agreement as compared to the current arrangements offered by the Employer was conducted. As a result of this analysis it was determined that 10 of the 69 employees to be covered by this Agreement would be financially disadvantaged when compared to their current arrangements. This is because most, if not all, of the employer’s Employees who are Bus Drivers and Bus Supervisors are paid for more hours each shift than they physically work. All of these employees work a split shift made up of a morning and afternoon component (that is, take the children to school in the morning and to bring them home from school in the afternoon). Under the Agreement, the Employer has made some minor changes to the split shift arrangements and the way they are paid, albeit the employees are still paid above the award rates of pay. As a consequence of some of the changes in the arrangement under this Agreement, some employees would fall into a lower time bracket than the current arrangements provide for. For example, where an employee currently receives, for example, 4 hours pay per day, under clause 12.3(g) of this Agreement their entitlement for the same shift may reduce to 3.5 hours pay. However, at all times under the new arrangement, the affected employees are still being paid for more hours than are actually worked.

Under this Agreement, affected employees will still be better off than they are under the Passenger Vehicle Transportation Award 2010. However, as a show of good faith, the Employer has undertaken to maintain the current arrangements for those 10 employees who, whilst still earning more under the Agreement than under the Award, may earn slightly less than they currently earn when working for the Employer. The Employer has agreed to continue to pay these relevant employees for the greater period of time over the split shift. No other employees are affected in this way. The Employer provided the relevant employees with a letter providing an undertaking to this effect.’

[6] Unsurprisingly, the applicant contends that the Agreement meets the BOOT and all the other legislative tests for approval of the enterprise agreement and that it should be approved by the Commission. In the alternative, it submitted that if the Agreement does not meet the BOOT, it should still be approved under s 189 of the Act.

[7] Having considered the materials filed, I am satisfied that all the pre-approval processes have been met, particularly in respect to notification of representational rights (s 173), provision of the text of the Agreement and other explanatory materials (s 180), a training day to explain the agreement and notification of the voting procedure. The vote took place over two days (10 and 11 March 2014) at two locations (Caboolture and Nambour, Sunshine Coast). In a secret ballot, 67 of the 69 employees to be covered by the Agreement cast a valid vote and 48 employees voted to approve the Agreement (72%). For completeness, I am satisfied that the employees genuinely agreed to approve the Agreement (ss 186(2), 188).

[8] While there were no employee bargaining representatives identified in the application, it would appear that the Transport Workers’ Union of Australia (the ‘Union’) has at least one member who would be covered by the Agreement. However, the Union was not involved in the negotiations for the Agreement. The Union filed a Form F18 in the matter in which it opposed the approval of the Agreement on the grounds that it fails the BOOT. Nevertheless, the Union gave notice that it wishes to be covered by the Agreement. I shall return to the Union’s objections shortly.

[9] At a telephone hearing on 17 April 2014, Ms L Aitken, Solicitor, represented the applicant and Ms M Cerrato represented the Union. After both parties outlined their respective positions, the Commission directed that further written submissions be filed and served in respect to any remaining issues in dispute. Five sets of submissions were ultimately filed.

The issues

[10] The Union originally raised concerns in relation to a number of clauses in the Agreement in respect to either the passing of the BOOT or the appropriateness of the clause for inclusion in the Agreement. Most of the concerns were addressed by an offer, by the applicant, of undertakings. These were acceptable to the Union. As I have decided to approve the Agreement for reasons which will shortly follow, pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement and marked as ‘Annexure A’. However, as I understand it, the Union has continued to press its opposition to the clause dealing with split shifts in the context of the meaning of the term ‘engagement’ under the Award. That clause is expressed in these terms:

’12.3 Casual:

...

(d) Given the nature of the work the Bus Drivers and Bus Supervisors perform, they work a split shift which comprises of two parts:

(i) First part is worked between 7:00am to 9:00am when they collect the passengers from their places of residence and transport them to their school; and

(ii) Second part is worked between 2:00pm to 4:30pm when they collect the passengers from their school and transport them to their place of residence.

(e) Bus Drivers and Bus Supervisors are required to work both parts of teh split shift set out in clause 12.3(d). If a Bus Driver or Bus Supervisor is not available to work both the morning and afternoon parts of the split shift, they will not be able to work the shift for that day and a relief Bus Driver or Bus Supervisor will be used to work the entire split shift for that day. The Company has the discretion to override this clause in the case of a legitimate emergency which prevents an employee working either part the split shift.

(f) While the Bus Drivers and Bus Supervisors work between the span of hours set out in clause 12.3(d), the actual time worked in each part of the split shift varies from 25 minutes to 2 hours depending upon the bus route and the number of passengers being transported, and the total time worked across both parts of the split shift varies from 50 minutes to 4 hours.

(g) Bus Drivers and Bus Supervisors will be paid the following minimum payments for the split shift:

(i) where the total time worked across the split shift is less than 2 hours, they will be paid a minimum of 3 hours; and

(ii) where the total time worked across the split shift is more than 2.5 hours but less than 3 hours per day, they will be paid a minimum of 3.5 hours; and

(iii) where the total time worked across the split shift is more than 3 hours and less than 3.5 hours per day, they will be paid a minimum of 4 hours; and

(iv) where the total time worked across the split shift is more than 3.5 hours and less than 4 hours per day, they will be paid a minimum of 4.5 hours.

(h) The minimum payments in clause 12.4(g) are payments inclusive of both parts of the split shift, therefore for the total shift not for each part of the split shift.

(i) Casual employees are paid a casual loading of 25% in lieu of entitlements such as sick leave, annual leave, public holidays and redundancy payments. Casual Employees also will not accrue continuity of service for the purpose of calculating any employment related benefits, except for long service leave and parental leave.

(j) Casual Employees may be requested to work reasonable additional hours from time to time to meet operational demands. Any hours worked in excess of 7.6 hours in any one split shift or 38 hours in any one week will be additional hours. Additional hours will be paid in accordance with clause 16 - Overtime of this Agreement.

(k) Relief Staff Pool:

(i) Employees in the Relief Staff Pool are employed on a casual basis and rostered as required to fill-in for any employees who are unable to work due to leave, illness or for other personal reasons.

(ii) Employees in the Relief Staff Pool who prove they are an asset to the Company by way of exceptional performance and reliability are given first option with regard to relief work as and when relief work becomes available and are offered the first available regular casual position when a vacancy arises.’

[11] The above clause is to be read in conjunction with cl 19, which I set out below:

’19 Company Buses

19.1 The Company provides each Bus Driver with a fully maintained Company bus (‘Bus’).

19.2 The Bus Drivers use the Bus allocated to them for the performance of their duties and garage the Bus at the place of residence at all times that the Bus is not on its designated route. The Bus needs to be kept locked and secure at all times when not in service. The Company accepts the Bus Driver may not have a garage capable of parking the Bus in, but the Bus must be parked on the property in a safe place.

19.3 The Bus Drivers start each shift for their designated bus route from their place of residence and return to their place of residence. They are not required to attend the premises of the Company. Therefore, each Bus Driver obtains the benefit of not:

(a) spending time travelling to and from work to start their shift each working day; and

(b) having to have a personal vehicle (including its running costs), or incur other costs to travel to the Company’s premises, to collect their Bus and start their shift on their designated route.

19.4 Some of the Company’s Bus Drivers are also employees of Education Queensland and work at the school where they are transporting students to. These Bus Drivers obtain the benefit of using the Bus as a cost free means of travelling to their primary place of employment each working day, and home again, while performing their duties for the Company.

19.5 Bus routes are determined taking into account the location of a Bus Drivers place of residence and making the first student collection as close as possible to the Bus Driver’s place of residence in order to minimise the length of running time between the Bus Driver’s home and the start of the bus route. This provides each Bus Driver with a tailor made bus route to suit the location of their place of residence.

19.6 Bus Drivers and Bus Supervisors have a large degree of autonomy in the performance of their duties but have access to the Directors 24 hours a day, 7 days a week for any support they may require.

19.7 The Company provides the Bus Drivers with a bus that is not more than 15 years old and all new buses since the beginning of 2013 and onward are automatic buses to ensure driver comfort and more ease when driving, particularly less stress on their knees due to not having to use a clutch.

19.8 Management from the Company collect the Buses from each Bus Driver’s place of residence when required for maintenance, servicing or machinery inspections. They are collected and returned outside of the times allocated to bus routes unless the bus requires urgent repairs, at which time the Bus is replaced with another Bus to allow the Bus Driver to service the bus route whilst the Bus is being repaired.

19.9 Bus Drivers and Bus Supervisors are required to keep their Bus in a clean and tidy appearance each day. Bus Drivers are required to wash their bus regularly and as need to maintain it in a clean appearance at all times. If the Company considers the bus needs to be cleaned at any time, the Directors may direct the Bus Driver to wash the Bus. If the Company considers the bus is not being kept in a clean and tidy condition at any time, the Directors may direct the Bus Driver and Bus Supervisor to clean and tidy the bus. The Company has included an allowance for bus washing in the wages in Schedule 1.

19.10 Bus Drivers are required to refuel their Bus and keep their Bus sufficiently fuelled to enable completion of their daily school run. The Company has included an allowance for bus refuelling in your Wage in Schedule 1.

19.11 Refuelling of the bus is to be performed at the Company’s nominated fuel supplier, BP Australia, at a service station location that is the most convenient for the Bus Driver. Refuelling is never to be done when students are on board the bus.

19.12 All running expenses, cleaning equipment and supplies and any bus incidental supplies such as tissues, first aid supplies, disinfectant wipes and sprays, are provided for by the Company.

19.13 Bus Driver’s [sic] may request to use the Bus for personal use. If a Bus Driver wishes to use the Bus for a personal use, the Bus Driver must first speak to the Directors and obtain prior approval to do so. Generally, the Directors will not deny the Bus Driver’s request. If a Bus Driver uses a Bus for personal use without prior approval from the Director’s [sic], the Bus Driver may be subject to disciplinary proceedings, up to and including dismissal.’

SUBMISSIONS

For the applicant

[12] The applicant submitted that the rates of pay under the Agreement are in excess of the full, non-transitional hourly rates and casual loadings provided for under the Modern Awards. If the rates of pay under the Agreement were compared to the minimum transitional rates, they were further in excess of the Awards. Additionally, none of the Award allowances removed in the Agreement were relevant to the employment of the employees to be covered by it. In the event that the employees were irregularly entitled to those allowances, the higher rates of pay would easily absorb any disparity.

[13] The applicant further submitted that the effect of the Union’s interpretation of cl 12.3 of the Agreement was that the employees would be paid for a greater period of time than they actually worked. The work as performed by the employees would fall under the definition of ‘broken shift’ in the Award, which is as follows:

‘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 two portions of work’

[14] The question of whether the term ‘engagement’ in relation to casual employees refers to the whole of a broken shift or to both parts of a broken shift as separate engagements, will be the subject of consideration in the 2014 Review of the Passenger Vehicle Transportation Award 2010 [MA000063]. The applicant drew attention to a number of approved enterprise agreements which allow for shorter minimum engagements for casual employees (1 hour in some cases) than those set out in the Award; See:

• Picton Buslines Pty Ltd A Member of Buslines Group Fair Work Agreement 2010 [AE889162];



• Buslines Group Pty Limited t/a Ballina Buslines Fair Work Agreement 2010 [AE889809];



• Buslines Group Pty Limited t/a Berrima Buslines Fair Work Agreement 2010 [AE889164];



• Buslines Group Pty Limited t/a Griffith Buslines Fair Work Agreement 2010 [AE887609];



• Buslines Group Pty Limited t/a Northern Rivers Buslines Fair Work Agreement 2010 [AE889811];



• Buslines Group Pty Limited T/A Orange Buslines Fair Work Agreement 2010 [AE887639];



• Buslines Group Pty Limited t/as Dubbo Buslines Fair Work Agreement 2010 [AE889072];



• Buslines Group Pty Limited t/as Tamworth Buslines Fair Work Agreement 2010 [AE889070]; and



• Sapphire Coast Buslines Pty Ltd Fair Work Agreement 2012 [AE402573].

[15] The applicant explained that its contract with Queensland Transport set out that no child was to be on a bus for longer than 1 hour and 15 minutes, though three out of the thirty bus journeys it operated had been granted an exemption by Queensland Transport due to geographical constraints. It was observed that some bus routes were only 25 minutes in duration. The drivers would never fulfil a minimum engagement of two hours on routes. Daily routes catered for between 6 and 14 students, although the buses have a capacity of 21 passengers. These were unique aspects of the business which should be taken into consideration by the Commission.

[16] The applicant said that 25 of its 67 employees were also employees of Education Queensland and are primarily employed at the schools to which they transport the children. For these employees, it could be said that the provision of free transport to and from their primary place of employment was a benefit. The applicant claimed that all of its employees were senior in age and that some of them only wanted a minimal amount of income to supplement their pensions.

[17] The applicant described the ability for employees to garage their bus at their homes, (see cl 19) as an advantage. Routes were programmed with the individual employee’s place of residence in mind. It was said that a ruling that the employees were to be paid for two separate minimum engagements of two hours would cause the applicant to review its operations, probably to the effect that the buses would be garaged at a central depot and employees would be required to clean them each day on their return in order to complete a minimum of two hours for each part of the broken shift. A centralised depot would also present difficulties for a number of employees.

[18] The applicant had identified 10 of its 69 employees (on the Sunshine Coast) who would be entitled to payment for 3.5 hours under the new split shift arrangements, rather than the 4 hours that they would be entitled to under the reference instruments. In both cases, the relevant employees were paid more than they actually worked. The applicant undertook that the 10 employees would be paid for the greater period over the split shift. This arrangement was facilitated by cl 15.2 of the Agreement.

[19] The applicant submitted that the purpose of an enterprise agreement was to provide a workplace with flexibilities that cannot be provided for by an Award and which are to the benefit of the employer and the employees. An assessment of whether an employee is ‘better off’ overall should include an assessment of non-monetary benefits.

[20] The applicant put that if the Agreement was considered in totality, it could not be said that employees would be ‘worse off’ under the Agreement than they would be under the reference instruments. In the alternative, the applicant submitted that if the Agreement did not meet the BOOT, there were ‘exceptional circumstances’ meaning that the approval of the Agreement would not be against the public interest (s 189); See: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 and Top End Consulting Enterprise Agreement [2010] FWA 6442.

For the Union

[21] The Union drew attention to cl 12.3 of the Agreement, noting that cl 12.3(e) requires all Bus Drivers and Bus Supervisors to work split shifts and that cl 12.3(g) provides for minimum engagements of 3 or 3.5 hours. Cl 10.5(d) of the Award sets out that a casual employee, engaged solely for the transportation of school children to and from school, is to be paid a minimum of two hours for each engagement. The Union submitted that casual employees, transporting children to and from school in one day, would be entitled to payment for two separate minimum engagements of two hours under the Award; See: Transport Workers’ Union of Australia v Australian Public Transport Industrial Association [2013] FWC 3221 (‘TWU v APTIA’). In any event, the BOOT is to be conducted on the provisions of the Award at the test time (s 193(6)). Payment for an engagement of 3 or 3.5 hours under the Agreement was obviously less than 4 hours under the Award. The Union calculated that employees could be between $7.88 and $21.72 worse off per day. While the rates of pay per hour were higher under the Agreement, this should be seen in light of them being expressed as being compensatory for the removal of a number of allowances.

[22] The Union noted the submission of the applicant concerning the ability for employees to get a ‘lift’ to their primary job at a school. However, this arrangement was not guaranteed by the Agreement, which merely said that Bus Drivers were to start work from their place of residence or another place agreed with the employer. This did not apply to Bus Supervisors and they were not guaranteed a ‘lift’ to work under the Agreement. The fact that many employees were allocated routes in close proximity to their homes negated this benefit. It was also said that the ability for an employee to use the bus for personal use was not codified in the Agreement.

[23] As to the applicant’s proposal to set up a centralised depot in the event that it was required to pay for 2 x 2 hour engagements, the Union submitted that the employees currently clean their buses in a time convenient to them, but this was not necessarily in paid time. It was noted that the establishment of a depot would attract additional costs for the applicant and would add to the wear and tear on the buses.

[24] The Union calculated that the financial disadvantage for some employees is over $100 per week, while many of the purported benefits are contingent, discretionary and/or not appropriately quantifiable. The applicant’s business was not unique in providing passenger vehicle services to physically and intellectually disabled children pursuant to a Government contract. The requirement for students to remain on the bus for short periods of time was standard in such contracts. The Union accepted the lack of a centralised depot was unusual, but noted the advantage to the applicant in not having to establish and maintain such premises. Accordingly, the Agreement could not be said to meet the BOOT.

[25] The Union did not accept that there were ‘exceptional circumstances’, within the meaning of s 189 of the Act, which would allow the Commission to approve the Agreement. The Union was not aware of other bus companies in Queensland that operated below the award minimum; See: Jellifish! Pty Ltd [2012] FWA 9640. The applicant had not submitted that it would suffer financial difficulty in the event that it was required to pay a minimum of 4 hours, rather than 3 or 3.5 hours; nor was it a not-for-profit organisation.

CONSIDERATION

Legislative framework

[26] The approval of enterprise agreements is dealt with in Division 4, Part 2-4 of the Act. S 186(1) provides that the Commission must approve an agreement if the requirements in ss 186-187 are met. For the purposes of this decision, the particular requirements set out in s 186(2)(d) are relevant.

‘(2) The FWC must be satisfied that:

...

(d) the agreement passes the better off overall test.’

[27] S 193 deals with when an enterprise agreement passes the BOOT and what is meant by that term. It is expressed as follows:

‘193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

...

(2) ...

...

(3) ...

...

(4) ...

...

(5) ...

(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.

FWC may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.’

[28] S 189 deals with the approval of an enterprise agreement that does not meet the BOOT. Its terms are expressed as follows:

‘189 FWC may approve an enterprise agreement that does not pass better off overall test—public interest test

Application of this section

(1) This section applies if:

(a) the FWC is not required to approve an enterprise agreement under section 186; and

(b) the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

(2) The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

(3) An example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.

Nominal expiry date

(4) The nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following:

(a) the date specified in the agreement as the nominal expiry date of the agreement;

(b) 2 years after the day on which the FWC approved the agreement.’

[29] I recently had cause to discuss the BOOT in Rooty Hill RSL Club Limited [2014] FWCA 2191. At paras [37]-[39], I said:

‘[37] ... It must be emphasised that an assessment of the BOOT is not a ‘line by line’ analysis of one term or condition in the Agreement compared to its corresponding provision (or lack thereof) in the Award. As was said in Armacell Australia Pty Ltd & Ors [2010] FWAFB 9985 at para [41]:

‘[41] The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement. The approach adopted by the Commissioner includes an identification of terms which might, on his view of the term, be less beneficial for an employee. There is nothing on the face of the Commissioner’s decision to indicate what account if any he took of any terms which might be more beneficial for an employee. He obtained a large number of undertakings from all three employers in relation to terms which he considered undermined existing entitlements. It may be that if we applied the BOOT ourselves we might come to different conclusions to the Commissioner in relation to the number and nature of the undertakings required. To follow that course, however, would require each of the applications to be considered afresh with the necessary delay that would entail.’

[38] In National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 (the ‘NTEU decision’), the Full Bench said at paras [46]-[47]:

‘[46] The test, as the name implies, requires an assessment of the overall benefit to an employee employed under an enterprise agreement as compared to the relevant award. This consideration does not require an assessment of the circumstances of each individual employee but, as s.193(7) allows, “... if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant award applied to that class , FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee”.

[47] As His Honour was well aware the Agreement contained some provisions which may be considered inferior to the counterparts provision in the Awards and provisions which were superior. There is nothing unusual about that. What he needed to satisfy himself of was whether, weighing the Agreement provisions as a whole with those in the Awards, an employee is better off overall. This, in our opinion, is clearly what His Honour did [footnotes omitted].’

[39] In the NTEU decision, the Full Bench quoted from Lawler VP’s decision which was under appeal; See: University of New South Wales [2010] FWAA 9588. It is useful to highlight how His Honour described the task of assessing the BOOT. At para [96], His Honour said:

‘[96] It is trite to observe that awards typically contain both monetary and non-monetary terms and conditions. Obviously enough, the BOOT calls for an overall assessment. Comparing monetary terms and conditions is, at the end of the day, a matter of arithmetic. There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the “overall” assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to particular non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award. In my view, it may also be relevant to consider the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement.’’

CONSIDERATION

[30] There is no doubt that the Commission may take into account non-monetary benefits under an enterprise agreement when assessing whether the BOOT is satisfied (supra above). In this case, I accept that non-monetary benefits include the following:

(a) A Bus Driver commences his/her shift from home. As the Union conceded, this is an unusual feature within the bus transport industry. For most other operators, a driver’s travelling time, to and from the depot, is in their own time. Under this Agreement, Bus Drivers have the convenience of starting and finishing their shifts from home. While I accept the advantage will vary according to distances from home and the first pick-up and last drop off, on any view, this arrangement is a significant benefit.

(b) The bus may be used, with permission, for personal purposes. While I was provided with no evidence as to the extent of takeup of this concession, there is no doubt that this is a benefit; albeit a relatively modest one.

(c) For those employees (25) whose primary employment is with Education Queensland, having the use of the bus to drive to and from their job at the school where they take the children is a further non-monetary benefit.

(d) Split shifts vary from 50 minutes to 4 hours. As most of the Drivers are not required to work the minimum engagements of 2 x 2 hour engagements a day, they are free to return home without working the balance of the engagements.

(e) All drivers are provided with a mobile phone, which they can keep if replaced.

[31] As to monetary benefits, it is clear, as the Union accepted, that the rates under the Agreement are higher than under the Awards. The differential for Bus Drivers is 4.3% and for Bus Supervisors is 0.5%. I note that the pay rates are to be annually adjusted in accordance with the Commission’s Minimum Wage Review Decision. Given the nature of the applicant’s business, a number of Award allowances are not applicable to the employees to be covered by the Agreement. Accordingly, they are not to be taken into account in assessing the BOOT.

[32] The Union’s case is predicated on an interpretation of the term ‘engagement’ as it applies to casual Bus Drivers and Bus Supervisors who work a broken shift. It is obvious that there are different views in the industry as to whether each part of the broken shift is a separate engagement and whether a two hour minimum payment applies to each part. See: the Agreements in para [14] above. It will be readily apparent that the term ‘engagement’ (I suspect deliberately) is not used at all in cl 12. Rather, the clause speaks of ‘part’ of the shift. In addition, I note that I have not been asked to interpret the Agreement provision in these proceedings (although this would seem problematic given the word ‘engagement’ is not used). However, as the Union put, this issue is to be considered in the upcoming Four Yearly Review of Modern Awards where the position will no doubt be clarified.

[33] Notwithstanding the decision of Bissett C in TWU v APTIA, I do not accept that this matter is definitively settled and certainly not by a Full Bench, which I would be bound to follow. I do not understand the Full Bench decision ([2009] AIRCFB 826) cited by Bissett C in TWU v APTIA to have determined the issue of whether the term ‘engagement’ in the Modern Award meant that casual bus drivers who transport children to and from school, and who work a split shift, should be entitled to two minimum engagement payments of two hours. In my view, the Union’s interpretation of an engagement for the purposes of the BOOT in this case, is open to different interpretations and cannot be said to be conclusive. I note that Bissett C said that the Union’s proposed clause in that case had the potential to create more confusion than it solved (para [32]).

[34] The objects of Part 2.4 of the Act include: ‘to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits’ (s 171(a)). Given that the underpinning purpose of an enterprise agreement is to provide flexibility and benefits for both employees and the employer in a manner which suits the specific circumstances of the business, cl 12, in my opinion, meets that purpose. However, the Agreement must still meet the BOOT. While I consider this matter to be finely balanced, I am satisfied that the employees are ‘better off’ overall and, accordingly, the BOOT is met. In those circumstances, the Commission cannot refuse to approve the Agreement (s 186(1)).

[35] Even if I am wrong as to this conclusion, I would approve the Agreement after taking into account the provisions of s 189 of the Act. Those provisions allow the Commission to approve an Agreement which does not meet the BOOT, if, because of ‘exceptional circumstances’, it would not be contrary to the public interest to do so.

[36] The term ‘exceptional circumstances’ appears elsewhere in the Act, including where the Commission is asked to extend time for the filing of an unfair dismissal application (s 394(3)) and an adverse action claim involving a dismissal (s 366(2)). The meaning of the expression was considered in a decision of the Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). At paras [10]-[13], the Full Bench said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.’

[37] There are relatively few Commission decisions dealing with s 189 of the Act, but it may be accepted, as a principle of statutory construction, that the meaning of a word or expression found in one section of the Act has the same meaning when it is found in another section of the Act, except where it is expressly said to have a different meaning; See: Craig Williamson Pty ltd v Barrowcliff [1915] VLR 452 per Hodges J at 452 and Registrar of Title (WA) v Franzon (1975) 132 CLR 611 per Mason J at 618.

[38] In applying the principles espoused in Nulty, that ‘exceptional circumstances’ means ‘out of the ordinary course, or unusual, or special, or uncommon’, I am satisfied that such a finding is open in this case. I note the Union acknowledged that it was ‘unusual’ for a bus company not to have a depot which the Bus Drivers left from and returned to. It has specifically structured its business in this way to take account of the important service it provides in transporting physically and mentally disabled schoolchildren to and from their school with the minimum of inconvenience to them and their families. It might also be said that the ability of some of the drivers to also be engaged as employees of Education Queensland at the school to which the children are transported, constitutes an unusual and special employment arrangement.

[39] In Top End Consulting Pty Ltd [2010] FWA 6442, Bartel DP dealt with the distinction between ‘in the public interest’ and ‘not contrary to the public interest’. At paras [44]-[46], Her Honour said:

‘[44] The expression “in the public interest”, when used in legislation, is to be determined by making a discretionary value judgement on the relevant facts, constrained only by the subject matter and the scope and purpose of the legislation. While the test in the present matter concerns the expression “not contrary to the public interest”, this approach remains apposite.

[45] The public interest is distinct from the views of persons directly affected and refers to matters that might affect the public as a whole.

[46] Mr Mossman submitted that, “The main public interest consideration in this application is the seasonal and cyclical nature of the business and the ability of the agreement to allow employees to maximise their income over the course of the year.” These circumstances do not constitute the broader public interest and on the evidence before the Tribunal I would conclude that the Agreement is not in the public interest. The test to be applied however is whether the Agreement, because of exceptional circumstances, is not contrary to the public interest, which is a lower test [footnotes omitted, my emphasis].’

I respectfully agree with Her Honour’s conclusions.

[40] Given the important community service in which the applicant is engaged in, I am satisfied that it would not be contrary to the public interest for the employees to work their special arrangements under the Agreement, so as to meet the critical needs of their passengers. Accordingly, I would also approve this Agreement based on the requirements set out in s 189 of the Act.

[41] For the aforementioned reasons, I am satisfied that the Agreement should be approved by the Commission. In particular, I am satisfied that all of the requirements in ss 180, 186, 187, 188, 189, 190, 191 and 193 of the Act, insofar as relevant to this application have been met. For the purposes of s 201(2) of the Act, I note the Union, despite its objections, seeks to be covered by the Agreement. Pursuant to s 54 of the Act, the Agreement shall have a formal operative date of 7 days hence, namely 30 May 2014 and have a nominal expiry date of 21 April 2018.

DEPUTY PRESIDENT

Appearances:

Ms L Aitken, Solicitor for the applicant

Ms M Cerrato for the Transport Workers’ Union of Australia

Hearing details:

2014

Sydney/Brisbane

17 April

Final written submissions:

Applicant - 16, 30 April, 9 May 2014

Transport Workers’ Union of Australia - 16 April, 8 May 2014

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