JL & CA Kennedy T/A Kennedys Bus and Coach

[2016] FWCA 7650

[2016] FWCA 7650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JL & CA Kennedy T/A Kennedys Bus and Coach
(AG2016/5525)

KENNEDYS BUS & COACH DRIVERS ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 9 NOVEMBER 2016

Application for approval of the Kennedy’s Bus and Coach Drivers Enterprise Agreement 2016

[1] An application has been made by JL & CA Kennedy T/A Kennedys Bus and Coach (the applicant) for the approval of an enterprise agreement known as the Kennedys Bus and Coach Drivers Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all route and school bus drivers working under a rural bus service contract. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Flexibility Term

[3] The flexibility term at clause 20 does not meet the requirements of s.203(6) of the Act. The Act provides that an Individual Flexibility Arrangement (IFA) can be terminated by either party providing 28 days’ written notice to the other party. The flexibility term contained within the Agreement provides that 13 weeks’ notice must be provided for termination of an IFA.

[4] Pursuant to s. 202(4) of the Act, the model flexibility term at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model flexibility term is attached to this decision and marked Annexure A.

Better off overall test (BOOT)

[5] The Fair Work Commission (the Commission) wrote to the applicant noting that the translating classifications provided in the Employers’ Statutory Declaration (F17) indicate that all grades under the relevant reference instrument, being the Passenger Vehicle and Transportation Award 2010 (the Award), translate to the two classifications within the Agreement. Subsequently, Grade 6, being the highest grade under the Award, was used to assess pay rates under the Agreement. It was found that in several respects, employees who would be classified as Grade 5 and Grade 6 under the Award would not be better off overall under the Agreement.

[6] The applicant has provided an undertaking amending the definition of “passenger transport driver” such that only employees falling within the classifications of Grade 1 to Grade 4 under the Award will be covered by the Agreement.

Weekend penalty rates for casual employees

[7] The Commission wrote to the applicant noting that the rates of pay for casual employees working Monday to Friday are higher than the Award, but that the rate of pay for casual employees on weekends is less than the Award. The Commission was concerned that employees who work a significant number of hours on the weekend, or exclusively on weekends, may not be better off overall. This was of particular concern given that the F17 stated that 26 out of 28 employees to be covered by the Agreement were casually engaged.

[8] The applicant has provided an undertaking increasing the weekend rates of pay for casual employees to rates equal to that of the Award. The undertaking also assured the Commission that all employees working a public holiday would not be paid less than the Award.

[9] The undertaking provided by the applicant also ensured that all employees who undertook training or attended a meeting would receive payments which were not less than the Award.

[10] To ensure these obligations are met the employer will undertake a reconciliation of payments each week.

Higher duties

[11] The Commission noted that under the Award if an employee is required to perform duties of a higher grade, for at least two hours on any shift or day, the employee will be paid the higher rate for the whole of the day or shift. Under the Agreement the employee is only entitled to the same if required to perform duties of a higher grade for four hours.

[12] The applicant has provided an undertaking that, if an employee is required to perform duties of a higher function, payment shall be made in accordance with the Award.

Allowances

[13] The Commission raised concern with clause 10.9 of the Agreement, which allows the applicant to direct an employee to work at any location operated by the applicant upon two days’ notice. Under the Award, employees would be reimbursed for the excess travel time incurred for commencing work at a place other than their usual place of work. The Agreement did not appear to contemplate this allowance.

[14] The applicant has provided an undertaking that, if an employee is directed to work at a location other than their usual place of work, they will receive payment, including any allowances, which is not less than the Award.

Conclusion

[15] Taking into account the higher rates of pay under the Agreement when read in conjunction with the undertakings, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[16] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure B. I am satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertakings should be brought to the attention of employees.

[17] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[18] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

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Annexure A

Annexure B