Mr Jeffrey Raymond McGregor v Busways Group Pty Ltd T/A Busways
[2022] FWC 2412
•12 SEPTEMBER 2022
| [2022] FWC 2412 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Jeffrey Raymond McGregor
v
Busways Group Pty Ltd T/A Busways
(C2022/847)
| COMMISSIONER P RYAN | SYDNEY, 12 SEPTEMBER 2022 |
Dispute about a matter arising under the enterprise agreement – application dismissed
Introduction
This decision concerns an application (Application).by Mr Jeffrey McGregor (Applicant) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Busways Group Pty Ltd (Respondent)
The Applicant is employed by Busways Pacific Pty Ltd as a casual bus driver pursuant to the Busways Pacific Fair Work Agreement 2020 (Agreement) which came into operation from 21 April 2021[1] and has a nominal expiry date of 31 December 2023.[2]
The Applicant is also employed by Busways Pacific EMP Pty Ltd as a casual cleaner pursuant to the Passenger Vehicle Transportation Award 2020 (Award).
The dispute concerns whether the Applicant’s role as a casual cleaner falls within the coverage of the Agreement. While the Application refers to the dispute settlement procedures in both the Agreement and the Award, during the hearing of the matter, the Applicant confirmed that the dispute is brought pursuant to clause 29 of the Agreement.
The Applicant’s primary contention is that his employment as a casual cleaner with Busways Pacific EMP Pty Ltd is covered by the Agreement. In the alternative, the Applicant contends that his duties as casual cleaner fall within the scope of his role/classification as a casual bus driver with Busways Pacific Pty Ltd.
The Respondent objects to the Commission arbitrating the dispute on the following grounds:
(i)The Applicant is not an employee of Busways Group Pty Ltd; and
(ii)To the extent that the Applicant relies on the dispute settlement procedure in clause 29 of the Award, the Respondent does not consent to the arbitration of the dispute.
Notwithstanding the objections raised, the Respondent accepts that its jurisdictional objections and the substantive dispute are intertwined such that the jurisdictional objections can only be resolved by the hearing of the substantive dispute, which the parties have agreed is to be resolved by the determination of the following question:
Does the Busways Pacific Fair Work Agreement 2020 apply to the Applicant’s role as a Cleaner at the Laurieton depot of Busways?
The matter was listed for hearing via Microsoft Teams on 16 May 2022.
I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2)(a) and (c) of the FW Act. The Applicant was represented by Mr K Bolwell. The Respondent was represented by Mr K Scott.
Witness statements were tendered from the following persons, who also gave evidence at the hearing:
·The Applicant (Exhibits A1 and A2);
·Mr John Taylor, Busways Operations Manager at the Laurieton Depot (Exhibit R1); and
·Mr Mark Lawrence, Busways Assistant Service Delivery Manager North Coast (Exhibit R3).
Background and Facts
The Respondent is part of a corporate group that operates passenger vehicle transportation services, including route and school bus services, throughout various parts of Australia.[3]
The corporate group consists of approximately 30 separate corporate entities. Some of those entities are employing entities, while others hold assets or are used for other purposes and do not employ any staff.[4]
The entities within the corporate group employ approximately 2900 people and operate a fleet of over 1350 buses across 20 bus depots located throughout New South Wales and South Australia.[5]
Each region or depot is operated through a different corporate entity. In most cases each region will have at least two corporate entities: one entity to employ bus drivers, and another entity to employ nondriving personnel such as workshop, administrative or yard staff.[6]
In relation to the north coast region of New South Wales, the workforce is structured as follows:
·Employees engaged as bus drivers are employed by Busways Pacific Pty Ltd. Prior to 17 January 2020, this entity was named Busways North Coast Pty Ltd; and
·Employees engaged in other roles such as yard staff, workshop staff, administrative staff, operational staff and cleaners, are employed by Busways Pacific EMP Pty Ltd. Prior to 24 January 2020, this entity was named Busways North Coast EMP Pty Ltd.[7]
On 19 August 2019, the Applicant commenced employment with Busways North Coast Pty Ltd (now Busways Pacific Pty Ltd) as a casual bus driver. The terms and conditions of employment were set out in an employment contract which relevantly provided that:
· The Applicant’s position is casual bus driver based at the Laurieton Depot and referred to an attached job description for a bus driver;
· The applicable “agreement” is the Busways North Coast Fair Work Agreement 2017, which has been superseded by the Agreement; and
· The employment is “subject to and dependent upon ongoing currency of (a) a valid driver’s licence and a Bus Driver Authority (b) Working with Children; Background Check”.[8]
The job description states:
Drivers are responsible for operating the bus in a way that ensures the safety of themselves, their passengers and the public. Drivers are required to do this in a manner that abides with TfNSW, RMS and Busways operational safety requirements.
Customer Service is an important aspect of the Bus Drivers job. Bus drivers are expected to be polite and respectful to all passengers.
Key Responsibilities:
· Work shifts and rosters as directed, carrying out all shift duties and instructions whilst ensuring that the guidelines in the Busways Employee Handbook and Busways Employee Manual are followed.
· Drive allocated vehicles along specified routes as directed, ensuring the care, safety and comfort of Busways' customers.
· Keep management informed of any issues- such as late running or overcrowding- which may affect the timetable or school service.
· Maintain and wear the uniform provided- be neat and tidy at all times.
Duties:
· Complete and/ or record all relevant shift reports, defect notices, driver occurrence reports and other reports as required
· Report any incidents or accidents immediately to management and complete an 'Internal Accident Report' upon returning to the depot.
· Operate Ticket machine, collect fares, check passes and ensure every passenger (except school students with passes) is issued with a Busways ticket.
· Visually check lights, tyres and panel for damage and report any defects as per Busways Sign On/Sign Off Procedure SMS 4.13.
· Ensure correct change is given, Driver Journals are completed correctly and that all monies collected is deposited in the safe provided at the end of your last shift for the day. Ensure that you have enough PET tickets and adequate change for every shift.
· Participate in all relevant training and meetings as required to ensure TfNSW, RMS, WHS and Busways requirements are met; attend meetings with management as requested
· Not perform or attempt to perform work under the influence of Drugs and/or Alcohol. Note: A maximum Blood Alcohol Limit as per legislation applies to drivers.
· Immediately report to management any matters of criminal or civil matters, or health issues relevant to the currency of your driver's licence or driver authority or your ability to drive.
· Are to remain within legal driving hour parameters and report all secondary employment.
· Perform any other work as directed.
Responsibilities:
· Observe and uphold all of Busways policies and procedures.
· Observe Busways Quality Assurance Policy and associated procedures.
· As a transport safety worker you are required to abide with all regulatory standards and Busways operational and safety requirements.[9]
The rostering and time and attendance system for bus drivers is an electronic system that notifies the drivers of their shifts at least 2 weeks in advance. The rosters are also displayed on a television screen in the driver’s room at the Laurieton Depot. Additionally, drivers can also access their roster and any amendments through a mobile telephone app called Blink.[10]
The Applicant is usually rostered to drive a school bus along assigned routes on school days from 7:27am to 8:58am (Route 112L) and then from 2:40pm to 4:39pm (Route 317L).[11]
The Applicant received weekly payslips which identified:
· The employer as Busways Pacific Pty Ltd;
· The employee as the Applicant, with a unique employee number, 620165; and
· The classification as “Driver Casual North Coast”.[12]
The Applicant also received “PAYG payment summary” documents with the payer as Busways Pacific Pty Ltd.[13]
Sometime after the Applicant commenced in the role of casual bus driver with Busways Pacific Pty Ltd, the Applicant was asked by another employee if he would be interested in additional work as a cleaner. The Applicant then approached Mr Taylor to express his interest in the role.[14]
In or about October/November 2019, the Applicant was offered and accepted employment with Busways North Coast EMP Pty Ltd (now Busways Pacific EMP Pty Ltd) in the role of causal cleaner. The terms and conditions of employment were set out in an employment contract which relevantly provided that:
· The Applicant’s position is casual cleaner based at the Laurieton Depot; and
· The award or enterprise agreement is the Passenger Vehicle Transportation Award 2010, which has been superseded by the Award.[15]
The Applicant also received a job description for the role of cleaner. The job description states:
Maintain cleanliness of company vehicles and premises.
Duties:
·Clean interior & exterior of company cars as required
·Clean interior of buses including seats, floors, ceilings, windows & dash area
·Clean exterior of buses including wheels, rims, mirrors, mud flaps, bumpers, wheel arches and windows
·Maintain cleanliness of work and wash bay area
·Clean workshop lunch room & change rooms including toilet area
·Clean office area, carpets, desks, empty office bins & toilet area including driver's room
·Cut lawns/ keep gardens and maintain general yard tidiness as required by Operations Manager
·Perform any other work as directed
Responsibilities:
·Observe and uphold all of Busways policies and procedures.
·Observe Busways Quality Assurance Policy and associated procedures.
·As a transport safety worker you are required to abide with all regulatory standards and Busways operational and safety requirements.[16]
The Applicant commenced employment with Busways Pacific EMP Pty Ltd as a casual cleaner in late November 2020.[17]
In relation to the rostering or allocation of work for cleaners employed by Busways Pacific EMP Pty Ltd, the Applicant prepares a document for Mr Taylor each Friday setting out the days and times that each cleaner is working in the following week. There was no dispute that these details are not included on the rostering system (including Blink) or displayed on the television screens at the Laurieton Depot that set out the rosters for bus drivers employed by Busways Pacific Pty Ltd.[18]
The Applicant is usually rostered as a cleaner from 5:30am to 6:30am and then from 9:00am to 12:00pm.[19]
In the period of 5:30am to 6:30am, the Applicant and another cleaner will wash up to 6 buses, typically buses that are used for public bus routes rather than school buses. The cleaning involves washing the exterior, including the tyres, windows and mirrors, with detergent, hosing the bus down, and removing excess water residue from the driver’s window, the front door and mirrors. The interior floor is swept and mopped, and the driver’s dashboard, instruments and adjacent glass are wiped down. As each bus is cleaned, it is repositioned within the depot and the next bus is moved into the wash bay.[20]
From 9:00am to 12:00pm, the Applicant empties rubbish bins within the depot buildings including the crib room, mechanics desk and administrative offices; undertakes general cleaning/tidying of the yard; and cleans 4-5 school buses. The cleaning of school buses in this part of the day can take longer than cleaning the route buses in the morning, because the school buses travel on unsealed roads. Again, as each bus is cleaned, it is repositioned within the depot and the next bus is moved into the wash bay.[21]
In relation to his role as a casual cleaner, the Applicant:
· received weekly payslips in relation to the casual cleaner role which identified:
o The employer as Busways Pacific EMP Pty Ltd;
o The employee as the Applicant, with a unique employee number, 820033; and
o The classification as “Casual Cleaner”;[22] and
· received “PAYG payment summary” documents with the payer as Busways Pacific EMP Pty Ltd.[23]
Mr Taylor stated that it was common for bus drivers to be employed as cleaners as a way of offering additional work and income, however there were cleaners that were not otherwise employed as bus drivers, and that a licence to drive a bus, while convenient, was not essential for the position of cleaner.[24]
In relation to the interaction between the role of bus driver employed by Busways Pacific Pty Ltd and cleaners employed by Busways Pacific EMP Pty Ltd:
· The Applicant was not required or obligated to take on the role or perform the duties of a cleaner;
· The Applicant did not perform any of the casual cleaner duties prior to commencing in that role in late November 2019;
· The other persons who are employed as bus drivers only do not perform any of duties the Applicant or others employed as cleaners[25] perform in the role of a cleaner; and
· The principal purpose of driving a bus in the casual cleaner role is to move the bus into the wash bay for the purposes of washing the bus and then repositioning it within the depot.[26]
Relevant Provisions of the Agreement
Clause 2 of the Agreement states:
2. Coverage
This EA covers:
·Busways Pacific Pty Ltd in the State of NSW, (The Company).
·Persons employed wholly or principally by the Company as Bus Drivers, (Employees).
Clauses 4(a) and (d) of the Agreement state:
4. Application and Scope of the Agreement
a) This Agreement shall apply to all employees who are employed wholly or principally by the company as bus drivers and who perform bus driving work in New South Wales.
…
d) This EA operates to the exclusion of any other industrial instrument that might otherwise apply including but not limited to any modern award or transitional instrument.
(emphasis in original)
Clause 5 of the Agreement adopts various definitions. The following definitions are relevant:
“Employees” shall mean those persons who work under the direction of the Company and receive payment within the terms of this EA and who are parties thereto.
“The Company” shall mean Busways Pacific Pty Ltd (ABN 75 106 202 340).
Clause 7(d)(i) of the Agreement states:
7. Rates of Pay
…
d)Allowances:
(i)Attendance Allowance - An employee who is called upon to operate a ticketing system or perform yard duties will receive an attendance pay as set out in Item 1 in Table 2 Schedule 1 Other Rates and Allowances.
Clause 8(c)(i) and (d) of the Agreement state:
8. Casual Employees
…
(c)The loading is paid in lieu of casual employees receiving paid leave entitlements or notice of termination under this Agreement and, subject to the Special Hiring clause, casual employees shall be paid in the following manner:
(i)Monday to Friday - Casual employees shall be paid for all time worked to the nearest minute, with a minimum engagement of 2.1 hours (including over split shifts).
(d) Overtime:
The following hours of work will constitute overtime and be paid at the following overtime rates:
·All time worked in excess of 38 hours per week or ten hours on any day - Casual employees shall be paid time and a half as set out in item 9 in Schedule 1 (Monetary Rates).
·Saturdays - Casual employees shall be paid for a minimum of four hours and shall be paid for all time worked at time and a half as set out in item 9 in Schedule 1 (Monetary Rates).
·Sunday - Casual employees shall be paid for a minimum of five hours and shall be paid for all time worked at double time as set out in item 10 in Schedule 1 (Monetary Rates).
·Public Holidays - Casual employees shall be paid for a minimum of five hours and shall be paid for all time worked at double time and one half as set out in item 11 in Schedule 1 (Monetary Rates). NOTE- this does not apply to Gazetted Local Public Holidays.
·Gazetted Local Public Holidays- Casual employees shall be paid for time worked at a rate of double time and one-half as set out in item 11 in Schedule 1 (Monetary Rates).
Clause 23 of the Agreement states:
23. Driver Duties and Mixed Functions
a)Where required by the Company, a driver’s duties shall include minor repairs such as changing tail lights, and each driver shall be ready, willing and able to perform minor roadside repairs. Drivers may also be required to perform other incidental or peripheral duties such as cleaning buses.
b)The Company may direct an employee to carry out such duties as are within the employee’s limits of skill, competence or training.
Summary of the Applicant’s Submissions
As stated above, the Applicant’s primary contention is that his employment as a casual cleaner with Busways Pacific EMP Pty Ltd is covered by the Agreement. In support of this contention, the Applicant submits that the definition of “Company” in clause 2 of the Agreement should be read as Busways Pacific Pty Ltd and any associated entities, as defined in s.50AAA of the Corporations Act 2001 (Cth).
In the alternative, the Applicant contends that his duties as a casual cleaner fall within the scope of his role as a casual bus driver and are therefore, covered by the Agreement.
In support of these contentions the Applicant referred clauses 2(b), 4(a), 4(d), 7(d), 8(c)(i), 8(d)(ii) and 23 of the Agreement. The Applicant submitted that the Agreement covers persons employed wholly or principally as bus drivers, but not exclusively as bus drivers and that the Agreement contemplates persons employed as bus drivers performing yard duties and duties that were incidental or peripheral to driving a bus such as cleaning buses.
The Applicant submitted that an integral function of his cleaning duties involved the driving of buses which is what he was principally employed to do.
The Applicant submitted that in accordance with the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[27] (Berri), it is clear on a plain and ordinary reading of the Agreement that it covers cleaning, and that the Agreement should be interpreted beneficially in favour of the Applicant.
Summary of the Respondent’s Submissions
The Respondent submitted that the Applicant’s primary and alternative contentions are not sustainable.
The Respondent submitted that the Applicant’s primary contention that the Agreement can be read to apply to the Busways Pacific Pty Ltd and its related (or associated) entities is not available on a proper construction of Agreement, applying the principles in Berri.
The Respondent noted the Applicant did not specify whether it was all of the entities within the Busways Corporate Group or if it was limited to some of them, and in any event, such a construction would be problematic as there are other entities within the Busways Corporate Group that are covered by other enterprise agreements.
In relation to the Applicant’s alternative contention that his duties as a casual cleaner fall within the scope of his role/classification as a casual bus driver, the Respondent submitted that was not the case, rather the Applicant was employed in two separate and distinct forms of employment.
The Respondent submitted that there is nothing illegitimate about an employee holding two separate and distinct forms of employment, whether it was with the same entity or different entities within a corporate group.
The Respondent submitted the legitimacy of separate and distinct forms of employment under the FW Act has been affirmed recently with reference to the decisions in Lacson v Australian Postal Corporation [2018] FCCA 511 (Lacson); Lacson v Australian Postal Corporation [2019] FCA 51 (Lacson Appeal) and Kroeger v Mornington Peninsula Shire Council [2018] FCCA 2313.
The Respondent submitted that each role performed by the Applicant was entered into pursuant to a separate contract at a separate time with a different entity to do different work at different times. The Respondent referred to the Applicant receiving different rates of pay and having a different employee identification number in relation to each role.
In relation to the work performed, the Respondent submitted that not every driver undertakes cleaning duties within the depot and that the task of driving a bus as part of the Applicant’s cleaning role was to reposition the bus in the wash bay for the purpose of cleaning.
The Respondent submitted that the Application must be dismissed on jurisidictional grounds as neither the Respondent or Busways Pacific EMP Pty Ltd are covered by the Agreement, and the Applicant’s casual cleaner role does not fall within the scope of his position as a bus driver and is therefore not covered by the Agreement.
Principles of construction of enterprise agreements
The principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in the decision of a Full Bench of the Commission in Berri as follows:
The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.
The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12.Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.
13.The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14.Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15.In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.
More recently, in Workpac Pty Ltd v Skene[28], the Full Court of the Federal Court in Skene succinctly restated the principles as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
[references omitted]
I have applied these principles in determining this matter.
Consideration
I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
The Applicant’s primary contention is that the definition of ‘Company’ in clause 2 of the Agreement should be read as Busways Pacific Pty Ltd and any associated entities. The Busways Corporate Group includes approximately 30 separate entities. While the Applicant has not specified which entities he says falls within the scope of that definition, as I understand the Applicant’s contention, it must, at the very least, include the Respondent and Busways Pacific EMP Pty Ltd. For the following reasons, this contention cannot be accepted.
First, clause 2 of the Agreement provides that the Agreement covers “Busways Pacific Pty Ltd in the State of NSW, (The Company)” and “Persons employed wholly or principally by the Company as Bus Drivers”. The company is clearly defined in clauses 2 and 5 of the Agreement as Busways Pacific Pty Ltd (with Australian Business Number 75 106 202 340).
On any reading of those provisions there can be no ambiguity as to the employer covered by the Agreement.
Second, s.53 of the FW Act provides than an enterprise agreement covers an employer if the agreement is expressed to cover the employer. The Agreement is clearly expressed to cover Busways Pacific Pty Ltd. The definition of ‘Company’ in the Agreement is not expressed to include any other entities.
Third, the suggestion that the term employer in s.53 of the FW Act, or Company in the Agreement, should be read broadly or beneficially to include associated entities is inconsistent with provisions in the FW Act regulating the coverage of enterprise agreements.
For example, under s.311 of the FW Act, a transfer of business is defined to include a transfer of employment between associated entities. If there is a transfer of business between associated entities, the default position set out under s.313 is that the enterprise agreement (as a transferable instrument) will cover the new employer and any transferring employees.
If, as the Applicant contends, the coverage term of an enterprise agreement includes the employing entity and any associated entities, then there would be no need to include a statutory mechanism for an agreement to ‘transfer’ between associated entities as part of the transfer of business provisions under the FW Act.
Accordingly, the Applicant’s primary contention that the definition of “Company” in clause 2 of the Agreement should be read as Busways Pacific Pty Ltd and any associated entities must be rejected.
It follows that the answer to the agreed question must be no, as the Agreement does not cover the Respondent or Busways Pacific EMP Pty Ltd.
In the alternative, the Applicant contends that his duties as a casual cleaner fall within the scope of his role/classification as a casual bus driver. As a consequence of my determination in relation to the Applicant’s primary contention, this contention must fail on jurisdictional grounds as the Respondent is not covered by the Agreement, nor is the Applicant employed by the Respondent.
If I am wrong in my conclusion that the Applicant’s alternative contention must fail on jurisdictional grounds, I would, in the alternative, reject that contention for the following reasons:
First, the FW Act contemplates that a person may have more than one job and provides that a reference to a modern award or enterprise agreement applying to, or covering, an employee is a reference to that instrument covering, or applying to, the employee in relation to ‘particular employment’.[29]
Second, in Lacson, McNab J considered the concept of ‘particular employment’ and held:
60. In my view, the wording of s.52(2) of the Act contemplates that an enterprise agreement may apply to particular employment and does not preclude an enterprise agreement applying to one particular employment and to a different employment undertaken by the same employee with the same employer. I am fortified in that view given that the High Court embraced the meaning of “particular employment” as set out in the relevant part of the explanatory memorandum. In particular I refer to the second sentence of clause 205 in the explanatory memorandum which stated:
·[i]f a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employees’ entitlements in relation to each job.[30]
…
62. In the Moreton Bay College decision, argument was directed to the particular awards that governed each part of the works performed by the employee. Each of the roles of groundsmen and caretaker were covered by the same certified agreement. In the present matter, no argument has been directed at whether separate awards applied to the employment but I presume that they do not. However, it does not mean that that Mr Lacson did not enter into two separate and distinct contracts of employment at different times, performing different work at different places with the same employer. In those circumstances, I do not understand why s.52(2) of the Act should not apply to allow the certified agreement to apply separately to each separate employment. It is apparent that an important feature of each of the Tramways case, Moreton Bay College case and Michaelmas v Broderick were that the types of work being performed by the particular employee concerned was separate and distinct and the contracts that led to that work being performed were separate and distinct.
…
66. In this case the respondent is not purporting to contract out of the terms of the enterprise agreements, rather it is conducting itself on the basis that there are in fact two employments which are separate and distinct from one another and it was entitled to do this by reason of S.52(2) of the Act.
(emphasis added).
The decision in Lacson was subject to an appeal to the Federal Court of Australia. In the Lacson Appeal, Mortimer J, examined the relevant provisions of the FW Act and concluded:
68. It is tolerably clear that there is a pattern within the FW Act to the use of the phrase “particular employment”. While the use of the word “employment” rather than “work” or “position” may suggest a focus on the contract of employment, in my opinion the purpose of the adjectival phrase “particular employment” is to enable identification, with sufficient precision, of what the job or position of an employee is at any given time: that is, what is the position description or classification given to the work they are performing.
69. Looking at its text and purpose, in the context of the FW Act as a whole and the other circumstances in which that phrase is used, in my opinion the work done by s 52(2) therefore is to confine the circumstances in which an enterprise agreement will “apply” to an employee to those circumstances where the employee is occupying a particular position or a particular job, and the contents of that enterprise agreement are intended to apply to the employee while she or he occupies that position or job, creating entitlements and obligations in the employee and the employer in accordance with the enterprise agreement.[31]
In considering the relevance of contracts of employment in the context of ‘particular employment’, Mortimer J found:
106. If a finding is necessary, then I am prepared to find on the evidence (which is largely undisputed, although the parties might emphasise different aspects) that there were indeed two contracts of employment between the appellant and Australia Post. They were entered into at different times, in respect of different positions or jobs, at different locations with distinct working hours, with each involving different kinds of work and different rates of pay. They had different conditions, at least initially – such as one being a permanent position and one not.
107. I also find that this is what the Federal Circuit Court meant by the passage at [62] of its reasons, which I have extracted at [25] above. Its finding was correct.
108. In this case, as Australia Post submitted, the appellant’s “dual employment” was a legal and factual reality which preceded the making and operation of each of the 2010 and 2013 Agreements. It was not a device: it was the product of the appellant’s choices about when he wished to work, and what he wished to do, and Australia Post’s agreement to offer him the jobs he wanted.
In concluding, Mortimer J held:
130. In a summary of the respondent’s submissions, counsel for Australia Post submitted there was, offered and accepted two, genuine, part-time jobs: there was no contrivance about the circumstances nor any evidence Australia Post sought to avoid or minimise its obligations under the 2010 and 2013 enterprise agreements. He submitted that the evidence showed it had been the appellant’s choice to apply, at different times, for two different jobs and Australia Post had elected to offer him an employment contract on two different bases: thus, there was no conduct that could be described as Australia Post attempting to contract out of its obligations. I accept those submissions.
131. It may be an unusual situation for a single employee to have two different jobs with one employer, and (as the Federal Circuit Court found and I have also found, to the extent it was necessary to do so) two contracts of employment. However, I have concluded that the operation of the enterprise agreements on the content of the terms of each contract of employment between the appellant and Australia Post is affected by s 52(2) of the FW Act so that the enterprise agreement applies to each “particular employment” the appellant had with Australia Post, and not in some cumulative way as the appellant contended.
132. As Australia Post submitted and the appellant accepted, the appellant had been paid overtime, and other entitlements, in respect of each of his jobs, where those entitlements applied under the enterprise agreements. That the appellant found himself performing two different jobs, at two different locations, with two different kinds of work, for one employer, was a function of choices he had made. It does not appear he made those choices believing, or having it represented to him, that they would be treated as one job and he should secure the considerable additional sums of money he is now seeking. Rather, he appears to have made those choices on the basis – correctly as this Court and the Federal Circuit Court have found – that he had two separate employment arrangements with Australia Post, each one regulated separately by the enterprise agreements.[32]
While the matter in Lacson and the Lacson Appeal involved whether there were two jobs under the same enterprise agreement with the same employer, in my view, the reasoning is apposite to the matter before me.
Applying the reasoning in Lacson and the Lacson Appeal to the matter before me, it is clear that the Applicant entered into separate and distinct contracts of employment with different entities at different times. Each contract of employment was for a different purpose with different duties and rates of pay, and different rostering and administrative arrangements.
It is not in dispute that the Applicant’s employment as a casual cleaner with Busways Pacific EMP Pty Ltd followed a request by him to as to whether he could undertake that additional work.
It is not in dispute that the Applicant was not required or obligated to take on the role or perform the duties of a cleaner, and he did not perform any of the casual cleaner duties prior to commencing in that role in late November 2019. It is also not in dispute that other persons who are employed as bus drivers only do not perform any of the duties that the Applicant or others employed as cleaners perform in the role of a cleaner.
Insofar as the Applicant’s role as a casual cleaner also involves the driving of a bus, I do not accept that that leads to a different conclusion, noting the Applicant’s acceptance in cross examination that the principal purpose of driving a bus in the cleaning role is to move the bus into the wash bay for the purpose of washing the bus, and at no stage in his employment with Busways Pacific EMP Pty Ltd did the Applicant drive a bus with passengers or for the purpose of picking up passengers.
Accordingly, I find the duties performed by the Applicant in the casual cleaner role do not fall within the scope of his employment as a bus driver. Rather, the casual cleaner role is separate and distinct employment with an employer not covered by the Agreement.
Conclusion
In conclusion, I find that the Applicant has two separate and distinct positions: one as a bus driver employed by Busways Pacific Pty Ltd regulated by the Agreement; and the other as a cleaner employed by Busways Pacific EMP Pty Ltd regulated by the Award.
Therefore, the Agreement does not apply to the Applicant’s role as a cleaner because that is separate and distinct employment with an employing entity that is neither the Respondent in this matter nor covered by the Agreement.
It follows that Commission does not have jurisdiction to deal with the dispute. The Application is dismissed.
COMMISSIONER
Appearances:
Mr K Bolwell, solicitor for the Applicant.
Mr K Scott, solicitor for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
16 May.
[1] [2021] FWCA 2019 at [18].
[2] Clause 3(a) of the Agreement.
[3] Exhibit R2 at [6].
[4] Ibid at [9].
[5] Ibid at [7].
[6] Ibid at [10].
[7] Ibid at [11]-[14].
[8] Exhibit A1 at [1], [6]; Exhibit R2 at [16]-[17], Annexure D.
[9] Exhibit R2, Annexure E.
[10] Ibid at [40].
[11] Exhibit A1 at [20].
[12] Exhibit R2 at [17], [20]-[21], [23] and Annexures F, G and H.
[13] Ibid at [22], Annexures I and J.
[14] Exhibit A1 at [7].
[15] Ibid; Exhibit R1; Exhibit R2 at [25]-[26], [32], Annexure K.
[16] Exhibit A1 at [8]; Exhibit R2 at [26], Annexure L.
[17] Exhibit A1 at [7]; Exhibit R2 at [28], [33] and Annexure P.
[18] Exhibit A2 at [10]; Exhibit R2 at [38]-[39].
[19] Exhibit A2 at [8]-[9].
[20] Exhibit A1 at [16]-[17]; Exhibit A2 at [8].
[21] Exhibit A1 at [26]-[32]; Exhibit A2 at [9]
[22] Exhibit R2 at [33], Annexures M, N, O, P, Q and R.
[23] Ibid at [34], Annexures S and T.
[24] Exhibit R1 at [14]-[17].
[25] Exhibit R2, Annexure U.
[26] Transcript 16 May 2022.
[27] 2017 FWCFB 3005 at [114].
[28] [2018] FCAFC 131 at [97].
[29] See ss.47(3), 48(5), 52(2) and 53(6) of the FW Act.
[30] Lacson at [60].
[31] Lacson Appeal Decision at [68]-[69].
[32] Ibid at [130]-[132].
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