Mr Craig Schwulst v Belbaker Pty Ltd T/A Belbaker Bus Charter

[2020] FWC 6452

[2020] FWC 6452

The attached document wholly replaces the document previously issued with the document code [2020] FWCA 6438 on 30 November 2020 to correct document referencing.

Associate to COMMISSIONER HUNT

Dated 1 December 2020

[2020] FWC 6452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mr Craig Schwulst
v
Belbaker Pty Ltd T/A Belbaker Bus Charter
(AG2020/2346)

Passenger vehicle transport (non rail) industry
COMMISSIONER HUNT	BRISBANE, 30 NOVEMBER 2020

Application for termination of the Belbaker Bus Charter Enterprise Agreement 2010 – whether Applicant an employee covered by Agreement at time of application to the Commission – no jurisdiction of the Commission to determine application – application dismissed.

[1] On Sunday, 9 August 2020, Mr Craig Schwulst filed an application under s.225 of the Fair Work Act 2009 (the Act) via the Fair Work Commission’s (the Commission) Online Lodgement Service. The application is for the termination of the Belbaker Bus Charter Enterprise Agreement 2010 (the Agreement). Belbaker Pty Ltd T/A Belbaker Bus Charter (Belbaker/the Respondent) is the Respondent. Belbaker provides charter bus services.

[2] The following is agreed between the parties:

(a) Mr Schwulst was employed under the Agreement;

(b) The Agreement has a nominal expiry date of 1 December 2014;

(c) The applicable unederpinning modern award is the Passenger Vehicle Transportation Award 2020 (the Award), although the Agreement operates to the exclusion of the Award; 1 and

(d) Mr Schwulst worked for Belbaker as a driver on a casual basis from November 2016.

[3] On 3 August 2020, Mr Schwulst provided to Belbaker the following correspondence dated 1 August 2020:

“Dear Adam

Letter of resignation

I am writing to you to tender my resignation from the position of Coach Captain – Driver with Belbaker Bus Charters. I am providing you with 1 week of notice, with my last day of employment on 09/08/2020.

I will still be available to drive on the Gold Coast over weekends as the third/fourth driver should the need arise.

I would like to thank you for the opportunity to workat Belbaker for almost 4 years. During this time I have thoroughly enjoyed the atmosphere and working within the team and I will miss our interactions.

While I am excited by the new opportunities that I will be pursuing, I will always remember my time at Belbaker with affection. Please do not hesitate to contact me if you need further information after I leave, and I would be delighted if you stay in touch.

Thank you for the opportunities and support that you have provided during my time here.

Yours sincerely,
Craig Schwulst” [original text]

Proceedings before the Commission

[4] On 12 August 2020, I issued directions requiring the Respondent to file relevant information to the Commission and to Mr Schwulst. On 13 August 2020, Mr Schwulst corresponded to my chambers and to the Respondent stating that while he had been rostered to work on 8 August 2020, the Respondent cancelled that shift and allocated it to an alternative employee. Mr Schwulst stated that he wasn’t sure if this fact had any impact on the application.

[5] As a result of the information from Mr Schwulst, I directed the parties to file material relevant to the period of Mr Schwulst’s end of employment, as only employees covered by the Agreement may make an application to terminate the Agreement.

[6] On 17 August 2020, the Respondent provided written submissions objecting to the application on the basis Mr Schwulst was not an employee at the time the application was made. I issued further directions for the filing of material in relation to the jurisdictional issue on 19 August 2020 and listed the matter for jurisdiction hearing on 26 August 2020.

[7] At the hearing, Mr Schwulst represented himself. The Respondent was granted leave to be represented by Mr Ben Cooper of Mapien. The following witnesses gave evidence and were cross-examined:

•  Mr Chaminda Sutherland, Head of Business;

•  Mr Adam Baker, Manager; and

•  Mr Mark Town, Logistic Manager.

Relevant legislation

[8] The relevant provisions of the Act are 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.”

[9] Section 225 of the Act provides that an application can be made by an employer covered by the agreement, an employee covered by the agreement, or an employee organisation covered by the agreement.

[10] Section 225 is found in Part-2-4 of the Act. In that part, by virtue of s.170 of the Act, “employee” means a “national system employee” and employer means a “national system employer.” A “national system employee” is defined in s.13 of the Act as: “an individual so far as he or she is employed, or usually employed as described in the definition of national system employer ”.

[11] The issue for determination is whether Mr Schwulst was an employee covered by the Agreement as at 9 August 2020, and therefore eligible to make the application.

The Agreement

[12] The Agreement contains specific clauses defining terms and conditions of employment, including engagement of employees. In particular, clause 2 of the Agreement provides:

“2. TERMS AND CONDITIONS OF EMPLOYMENT

2.1. ENGAGEMENT OF EMPLOYEES

2.1.1 Employees will be engaged on either a full-time, part-time or casual basis.

2.1.2 Part-time Employees shall be entitled to the same terms and conditions of employment as a full-time Employee on a pro rata basis.

2.1.3 Employees will be engaged in the relevant classification set out in APPENDIX B of this agreement.

2.1.4 For casual Employees each engagement stands alone.” [original text and emphasis]

Evidence and submissions of the Respondent

[13] The Respondent submitted that a jurisdictional fact for the Commission to exercise its power under s.225 of the Act is not satisfied because Mr Schwulst was not an employee covered by the Agreement at the relevant time of 5:31pm on 9 August 2020.

[14] The Respondent noted that Mr Schwulst was a casual employee. The Respondent cited Shortland v The Smith’s Snackfood Co. Ltd [2010] FWAFB 5709 in which the Full Bench held:

“As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement.” 2

[15] The Respondent submitted that Mr Schwulst’s employment ceased at the conclusion of his work on 7 August 2020, and that he was not offered and did not perform work on or after 8 August 2020. The Respondent submitted that Mr Schwulst’s employment therefore ended on 7 August 2020. It was submitted that on this basis, the application was not validly made, and the Commission does not have jurisdiction to deal with it.

Evidence of Mr Chaminda Sutherland

[16] In his first witness statement dated 17 August 2020, Mr Sutherland said that Mr Schwulst was offered work on 7 August 2020 between 6:00 am and 8:15 am, and further work between 2:30 pm and 5:00 pm. He completed those two shifts, and he then did not perform any work on 8 or 9 August 2020.

[17] Mr Sutherland said in his further witness statement dated 21 August 2020 that Mr Schwulst met with him on 3 August 2020 and said he believed he was entitled to a pay rise in July 2020 under the Award. Mr Sutherland informed Mr Schwulst that the Award increase had been deferred until November 2020.

[18] Mr Sutherland’s evidence is that Mr Schwulst informed him that he considered that there were benefits under the Award which he thought he should get, and he was dissatisfied with the Agreement. Mr Sutherland informed Mr Schwulst that to his knowledge, employees supported the Agreement, and he stated that the Respondent was not prepared to alter its terms for an individual employee. Mr Schwulst then handed to Mr Sutherland a written resignation letter dated 1 August 2020.

[19] Mr Schwulst asked him to sign a copy of the resignation letter to acknowledge his receipt of it, which he did. Mr Sutherland did not discuss with Mr Schwulst when his last day of work would occur. He stated that scheduling decisions are made on a day-to-day basis by the relevant supervisors.

Mr Adam Baker

[20] Mr Baker met with Mr Schwulst on 3 August 2020 and was informed that he had tendered his resignation as he had an opportunity to work in a business making pontoons and he was excited about the opportunity. Mr Baker thanked Mr Schwulst for his work with the business and wished him well for the future. Mr Baker did not discuss with Mr Schwulst when his last day of work would be.

[21] Mr Baker’s evidence is that the Respondent provides bus charter services in Southeast Queensland and trade has been affected since March 2020 due to clients reducing their use of its services as they adjust their operations to meet Queensland State government mandated social distancing requirements. Mr Baker said that a large number of the Respondent's casual workforce were not eligible to receive JobKeeper.

[22] On 7 August 2020, Mr Baker had a telephone discussion with Mr Town regarding the Respondent’s Gold Coast operations, as Mr Town is responsible for allocating jobs on the Gold Coast. Mr Town informed him that he had scheduled Mr Schwulst to undertake a charter on 8 August 2020. Mr Baker replied that Mr Schwulst had resigned, and that he wanted the charter to be given to another employee who he knew could benefit from the additional hours of work. Mr Town replied that he would amend the schedule.

Mr Mark Town

[23] Mr Town gave evidence that on 7 August 2020, Mr Baker telephoned him and they spoke about the logistics requirements for the weekend. There were no jobs scheduled for Sunday, 9 August 2020.

[24] Mr Town informed Mr Baker that Mr Schwulst was scheduled to do a job going between St Hilda's School and The Southport School on Saturday, 8 August 2020. Mr Baker informed him that Mr Schwulst had resigned earlier in the week to take a job driving pylons for pontoons which paid better than working for the Respondent. Mr Baker said to him that there were a number of employees seeking additional hours of work, and he asked Mr Town to allocate the work to another employee who could use the additional money. Mr Town was able to find another employee to undertake the job. Mr Town attempted to telephone Mr Schwulst, however he did not answer.

[25] Mr Schwulst returned Mr Town’s telephone call and was informed that the Saturday work had been reassigned to another employee. When Mr Schwulst asked why, Mr Town informed him it was at Mr Baker’s direction. Mr Schwulst questioned if it had anything to do with the email that he had sent to Mr Baker earlier that day? Mr Town stated that he wasn’t aware of the email he was referring to. Mr Town took the opportunity to farewell Mr Schwulst and wish him well for the future, as no further work would be performed by him. Mr Schwulst said goodbye and the conversation ended.

Evidence and submissions of Mr Schwulst

[26] Mr Schwulst stated that he commenced working for the Respondent in November 2016 and worked from the Brisbane depot until January 2017, when he was transferred to a new depot on the Gold Coast. He was tasked to operate the Miami school run on a daily basis, working a split shift from 6:00 am until 8:15 am, and again from 2:30 pm to 5:00 pm. He stated that he was the lead driver for the Miami school.

[27] Mr Schwulst stated that at the end of March 2020, the Gold Coast depot closed, and he was asked whether he could store company property at his house as a container which was being used as an office was being collected. Mr Schwulst said he agreed and stored the company property without charge.

[28] On 3 August 2020, he had a meeting with Mr Sutherland at the Zillmere office. Mr Schwulst said he raised three points of discussion, being incorrect/short pay for the previous fortnight for himself, the new Award and the Agreement. Mr Schwulst said that he and Mr Sutherland were the only attendees of the meeting. Mr Town had asked whether he was needed but was told by Mr Sutherland that he was not.

[29] Mr Schwulst stated that the issue regarding the short pay was resolved and the meeting moved on to discuss the Award and Agreement. Mr Schwulst stated that he asked about a few of the differences between the incoming Award and the Agreement, including different pay rates for hours worked out of normal hours, allowances for uniforms, minimum hours of engagement, and payment of wages. Mr Schwulst was most concerned that the minimum engagement under the Agreement is two hours, as opposed to three hours under the Award. Further, payment of wages was not consistent, and days often changed which created issues for staff with banks due to debit orders and financial commitments.

[30] When challenged on the pay days, Mr Sutherland told Mr Schwulst that he had not done anything wrong in changing the pay days, as he was following JobKeeper guidelines. Mr Schwulst informed Mr Sutherland that he understood that the Australian Tax Office had informed employers they were to follow their usual pay cycles.

[31] Mr Schwulst’s evidence is that Mr Sutherland was adamant that the Respondent had an agreement signed before a Commissioner, that it was valid, and the Respondent would not re-negotiate a new enterprise agreement. Mr Schwulst enquired whether there had been any changes in employment conditions in the workplace since 2010 when the Agreement had been signed, and suggested that a new agreement should be negotiated incorporating the current Award and all its conditions. Mr Schwulst asserted that things could not have remained the same since 2010. Mr Schwulst mentioned that that Agreement had a nominal life of 4 years which expired in December 2014, to which Mr Sutherland responded that the Agreement was valid and applicable.

[32] Mr Sutherland informed Mr Schwulst that the Respondent would not negotiate a new agreement because one employee was unhappy, and if Mr Schwulst was unhappy then he should seek alternative employment. Mr Schwulst then handed over his prepared resignation letter and asked Mr Sutherland to sign receipt on his copy of the resignation letter, which he did after reading and checking both copies first.

[33] Mr Schwulst’s evidence is that he did not go to the meeting seeking a pay rise, but instead was trying to resolve the issue around the outdated Agreement and new Award. Mention of a pay increase due in November 2020 came about when he said that the new Award had been released in July after it had been updated on 26 June 2020, to which Mr Sutherland replied that the Award would only come into effect in November. Mr Schwulst informed Mr Sutherland that the only part of the Award coming into effect in November was the scheduled pay rise.

[34] Mr Schwulst left Mr Sutherland’s office and met with Mr Baker, whom he had initially planned to meet with directly instead of Mr Sutherland, but had earlier been told that Mr Baker was not available. Mr Schwulst agrees with the evidence given by Mr Baker, but otherwise stated that he had resigned and that had found other employment as the current job situation with JobKeeper and the upcoming workload available would not be beneficial to his financial position.

[35] Mr Schwulst stated that he informed Mr Baker that his resignation letter declared his last day of employment to be 9 August 2020, and he was available in that week to train a new driver and assist with the transition of his duties to the new driver. Mr Schwulst informed Mr Baker that he would make himself available to drive on upcoming weekends, if required. His evidence is that Mr Baker thanked him for the offer to assist and there was general discussion regarding future possible work.

[36] Mr Schwulst stated that Mr Baker said he should discuss his future availability with Mr Town. He did so, informing Mr Town that he had resigned effective 9 August 2020, and he was available for the weekend of 8 and 9 August 2020. Mr Schwulst said that he knew that his school runs were being handed over to another driver, and that driver had limited availability on weekends as he has a second job as a party bus driver on weekends. Mr Schwulst stated that both he and the Respondent would benefit from him making himself available over weekends as the Respondent would not need to send a bus or driver from Brisbane to cover weekend work and he would get extra casual hours. Mr Town said that he would keep Mr Schwulst’s availability in mind when scheduling weekend work from then onwards.

[37] Mr Schwulst worked for the remainder of the school week doing the daily school runs and a few rowing charters. He also trained the replacement driver on the Miami school run. On 7 August 2020 he was tasked with two charters to commence on 8 August 2020 at 4:45 am and finishing at 11:50 am. The tasks were assigned by way of work tickets issued through the Respondent’s Coach Manager Driver Portal at 11:25 am, and he acknowledged receipt of the work tickets and printed them off.

[38] On 7 August 2020, Mr Schwulst sent an email to the Respondent’s Logistics email address marked for the attention of Mr Town, copying in Mr Baker and Mr Sutherland. The email had the subject “Resolution request for out of date Enterprise Bargaining Agreement” and read:

“Good day Mark

As you are fully aware - the current Enterprise Bargaining Agreement for the drivers was signed in December 2010 and it has a nominal expiry date of (4) four years which was December 2014. Almost annually the Passenger Transport Award MA000063 is updated and a few changes are made as things develop in the Industry and various workplace circumstances are addressed. This is with regards to work conditions, allowances and such.

I have read our Agreement and compared it to the current Passenger Transport Award of 2020 which is still based on the original Award of 2010, but updated to the new and evolving employment environment in which we now find ourselves. I have found certain points of difference. Please find attached some of these points.

On Monday 3 August 2020 I had a meeting with Chaminda and tried to address these points. He was however adamant that the Company had their Agreement and that the Company would not budge from that Agreement even though I pointed out to him that the Agreement was 10 years old. It further got to the point that he said the Company would not accommodate any change when I asked him how do we go about trying to negotiate a new and up to date Agreement, as they had an Agreement which had been signed by the Commissioner. The Company would not negotiate a new Agreement for the sake of 1 person who was unhappy.

The conversation then went on to the effect that if I was not happy with their position that I could find an alternative place of employment.

I then subsequently tendered my resignation. At present I am still an employee of the Company and as such still have the right to have an input and to try and push for fair change which is legislated.

I ask that there be negotiations between the Company and the drivers and that they collaboratively work towards a new and current Agreement where the drivers can receive their correct entitlements and allowances as set out in the Award. Clarity could also then be received surrounding the current constant changing of pay dates, working away from home allowances, minimum hours of payment should an allocated job be cancelled at short notice etc ...

I trust you find this in order and hopefully the situation can be resolved. The re-negotiation of a new Award would lead to a more positive work environment and positive culture in the workplace and it would allow the Company to bring itself up to date with the Current Award and it's conditions.

Kind regards
Craig Schwulst” [original text]

[39] On 7 August 2020 at approximately 6:50 pm, Mr Schwulst received a phone call from Mr Town which he missed but returned shortly thereafter. Mr Town informed him that the jobs for Saturday had been taken off him on instruction from Mr Baker. Mr Schwulst said to Mr Town that the jobs had been taken off him because of the email sent earlier that day. Mr Town did not comment.

[40] Later that night Mr Schwulst again telephoned Mr Town and informed him that the Respondent had to make arrangements to collect the goods stored at his property by the next day. This was agreed to and arrangements made. The goods were collected on the Saturday afternoon.

[41] Mr Schwulst stated that he received an email at 9:32 pm that evening informing him that the jobs that been removed off the system and were no longer available.

[42] On 8 August 2020, Mr Schwulst entered a timesheet on the Respondent’s task portal for the cancelled job of 8 August 2020, as he felt that insufficient notice had been given for the cancellation of the shift. He stated that he received a reply on 18 August 2020, advising that the three hours claimed for the cancelled shift was not approved and would not be paid, citing clause 3.1.3 of the Agreement.

[43] It is Mr Schwulst’s sincere belief that if he had not sent the email of 7 August 2020, he would have continued working the shift of 8 August 2020, and would have worked on subsequent weekends.

[44] Mr Schwulst submitted that at no stage did anybody mention to him that his last day of work would be 7 August 2020. Mr Schwulst said that his signed and acknowledged resignation letter stated 9 August 2020 would be his last day of work for the Respondent.

[45] At the hearing, I requested Mr Schwulst address me on clause 2.1.4 of the Agreement (reproduced at [12]) which provides that each casual engagement stands alone. Mr Schwulst conceded this was the case, but submitted that could go so far to mean that no casual employee would be eligible to make a similar application to the Commission after their shift concluded each day as the casual employee would be effectively unemployed subsequent to each shift and therefore not a current employee until the commencement of their next shift.

[46] I questioned Mr Schwulst as to why he had signed the application on 6 August 2020 but did not file it until 9 August 2020. Mr Schwulst conceded the delay in filing and said that had he been made aware that his employment had ended on 7 August 2020, he would have filed the application on 7 August and not waited until 9 August 2020, but he considered he was still employed as his resignation had not taken effect.

Consideration

[47] The issue of whether Mr Schwulst was covered by the Agreement, and quite simply was an employee at the time he made the application is a threshold issue. It must be considered prior to determining whether or not to approve termination of the Agreement. If I am satisfied that Mr Schwulst was an employee on 9 August 2020, I will be satisfied that he was an employee covered by the Agreement.

[48] Mr Schwulst prepared his resignation letter on 1 August 2020 and delivered it towards the end of a meeting with Mr Sutherland on 3 August 2020. The letter is contradictory in that it nominates Mr Schwulst giving one weeks’ notice of his resignation, but then declaring that his last day of employment will be 9 August 2020.

[49] Mr Schwulst last worked on 7 August 2020. He was prepared to and accepted confirmation of shifts on 8 August 2020. These shifts were then withdrawn on 7 August 2020 at the initiative of the Respondent. Mr Schwulst’s last day of performing work for the Respondent was 7 August 2020.

[50] Mr Schwulst’s status was that of a casual employee. The Agreement specifically states that for casual employees each engagement stands alone.

[51] Having regard to s.13 of the Act, and the reference to an individual who is employed, or usually employed, I consider that it would provide for a broader definition than simply each casual engagement standing alone. For example, if Mr Schwulst ordinarily drove buses for the Respondent Monday to Friday on the school run, I do not consider that his employment, and how he is usually employed would end on a Wednesday afternoon and resume or recommence on a Thursday morning. In these circumstances, I do not consider that it would be necessary for Mr Schwulst, or any like casual employee to have to file a s.225 application within a shift of work; if they understood that they were usually employed to work the next day, given the regularity of the work, filing an application on a Wednesday night would, in my view, meet the jurisdictional threshold of being an employee covered by an agreement.

[52] I accept that on 7 August 2020, Mr Schwulst had an expectation of working 8 August 2020. It had been allocated to him on 7 August 2020 and he printed the work allocation off. It was then subsequently withdrawn.

[53] There was never any promise of work or expectation of work to be performed on 9 August 2020. There is no evidence before the Commission that Mr Schwulst regularly drove on Sundays such that the nomination by him of his final day of work being 9 August 2020 had some correlation to the way that he was usually employed.

[54] For Mr Schwulst’s application to continue, the jurisdictional objection made by the Respondent need be dismissed. Mr Schwulst waited until 9 August 2020 to make the application, it seems, based on a belief that because he had nominated 9 August 2020 as his last date of employment his employment was still in place. If Mr Schwulst had nominated 31 August 2020, or 31 December 2020, the Respondent need not accept such nomination given the casual employment of Mr Schwulst. I do not agree that a casual employee could give, for example weeks or months’ notice of an intention to no longer be employed and an employer be required to accept such nomination.

[55] Mr Sutherland signed the resignation letter, noting that he received it. It states, “Received by”, together with Mr Sutherland’s signature. I do not find that he “accepted” Mr Schwulst’s last date of employment to be 9 August 2020.

[56] I have considered the decision of Deputy President Asbury in Ruairidh Colm Paterson-Russell [2020] FWC 4590. In that decision the Deputy President was tasked with deciding a similar issue; did Mr Paterson-Russell competently make the s.225 termination application on 1 November 2019 where the respondent in that matter submitted that the employment ended on 31 October 2019 by virtue of the employee departing his motel accommodation on 1 November 2019?

[57] The Deputy President considered all of the matters before her having regard to Mr Paterson-Russell’s status as a part-time employee, requiring one weeks’ notice by either the employee or the employer to end the employment, and in the alternative, if there had been repudiation of the contract by Mr Peterson-Russell, any such repudiation had not been accepted by the employer. The Deputy President determined that Mr Peterson-Russell had standing when he made the application to terminate the agreement on 1 November 2019.

[58] I am satisfied that I can distinguish the above decision from the matter before me for the following reasons. Mr Schwulst was employed as a casual employee and took steps to end the casual employment. Where in his mind the employment would end on 9 August 2020, the Respondent took steps for it to end on 7 August 2020, with no intention to offer to Mr Schwulst any further shifts.

[59] There was no requirement for Mr Schwulst to give any notice as there would have been in the above matter before the Deputy President. Mr Schwulst could have given one hour’s notice, one day, one week, one month or one year. The Respondent need not agree to any lengthy period of notice given by a casual employee. The notice given by Mr Schwulst to end the casual employment was not a lengthy period of time; whatever the period, I find that it was not agreed to by the Respondent.

[60] I conclude that the casual employment of Mr Schwulst ended on 7 August 2020 when he last performed work. Accordingly, he was not an employee covered by the Agreement when the application was made and there is no jurisdiction for the Commission to determine the application.

[61] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE882392  PR725036>

 1   Clause 1.3.2 of the Agreement.

 2   Shortland v The Smith’s Snackfood Co. Ltd [2010] FWAFB 5709 at [10].