| [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
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