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.

(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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCA 3338
Decision Date: 23 MAY 2014

CaseChat Overview and Summary

Jarman Ace Pty Ltd, trading as Ace Buses, applied to the Fair Work Commission for approval of the Ace Buses Enterprise Agreement 2014. The Union objected to the approval of the agreement, contending that it did not meet the Better Off Overall Test (BOOT) and contained provisions that set rates of pay for single engagements. The Commission was required to determine whether the agreement met the BOOT and, if not, whether there were exceptional circumstances and considerations of public interest that warranted approval. The Commission found that, while the agreement did not meet the BOOT, the exceptional circumstances and public interest considerations warranted its approval. The Union had argued that the agreement did not meet the BOOT as it did not provide for a pay rise for the employees covered by the agreement. However, the Commission found that the agreement provided for a number of benefits, including improved leave provisions and the establishment of a training and development fund. The Commission also found that the public interest considerations, including the impact on the bus industry and the broader community, warranted approval of the agreement. The Commission approved the agreement with a number of undertakings proposed by the Applicant to address the Union's concerns. These undertakings included a commitment to review the agreement in 12 months to consider whether a pay rise was warranted, and to consult with the Union on any proposed changes to the agreement. The Commission also found that the agreement would be approved under section 189 of the Fair Work Act 2009, which allows for the approval of an agreement where the Commission is satisfied that it is in the public interest to do so. The Commission approved the agreement with the proposed undertakings, and ordered that the agreement be registered with the Fair Work Commission.

Orders