Newcastle Tour Company Pty Ltd T/A Newcastle Limousines, Charlestown Hire Cars, Hunter Vineyard Tours, Pokolbin Hire Cars

[2023] FWCA 2584

[2023] FWCA 2584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Newcastle Tour Company Pty Ltd T/A Newcastle Limousines, Charlestown Hire Cars, Hunter Vineyard Tours, Pokolbin Hire Cars

(AG2023/2116)

NEWCASTLE TOUR COMPANY ENTERPRISE AGREEMENT, 2023

Passenger vehicle transport (non rail) industry
COMMISSIONER MIRABELLA	MELBOURNE, 13 SEPTEMBER 2023

Application for approval of the Newcastle Tour Company Enterprise Agreement, 2023.

1. Newcastle Tour Company Pty Ltd T/A Newcastle Limousines, Charlestown Hire Cars, Hunter Vineyard Tours, Pokolbin Hire Cars (the Employer) has made an application for approval of an enterprise agreement known as the Newcastle Tour Company Enterprise Agreement, 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 16 March 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 22 June 2023.

1. The Employer has provided an undertaking which prescribes a minimum payment of two hours for one engagement in a day or three hours minimum payment for two separate engagements in a day for casual employees solely engaged for the purpose of transportation of school children to and from school. The relevant instrument for the better off overall test is the Passenger Vehicle Transportation Award 2020 (the Award), which prescribes a minimum payment of two hours for each separate engagement for casual employees solely engaged for the purpose of transportation of school children to and from school.[1]

1. The Employer noted in submissions provided to my chambers on 19 July 2023 that the Agreement does not pass the better off overall test in this regard but submits that there are exceptional circumstances for nonetheless approving the Agreement.  

1. The Employer submits that it provides services under the Assisted School Travel Program (Program) under a contract with the New South Wales (NSW) Government Department of Education for which it receives a fixed payment for transporting children to and from school each day. The fixed amount is determined having regard to the NSW Government’s requirement that no child be transported for longer than 90 minutes either going to or returning from school.  The Employer submits it has concerns about its capacity to accommodate these payment arrangements with the NSW Government due to increases in the applicable minimum Award rates, as well as other operating costs, if it is required to pay employees the minimum engagement payments under the Award, regardless of time worked.

1. The Employer submits that if its casual employees who undertake school runs are not excluded from the minimum payment entitlement under the Award, it would have to cease providing services under the Program, meaning disabled students would have to find an alternative means of getting to and from school and the employees engaged for the purpose of this work will no longer be required by the Employer.

1. Section 189 of the FW Act sets out circumstances in which the Commission may approve an enterprise agreement that does not pass the better off overall test. Section 189(2) provides that the Commission may approve an agreement under this section if it is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to public interest. If an agreement is approved under s.189(2), the nominal expiry date is the earlier of the date specified in the agreement or two years after the day on which the Commission approved the agreement.

1. The test in s.189(2) of the FW Act is whether the approval of the agreement, because of exceptional circumstances, is not contrary to the public interest, which is a lower test than whether approval of the agreement is in the public interest.[2]

1. I am satisfied that exceptional circumstances arise, having regard to the needs of disabled school children and the funding arrangements in place and time limitations imposed in relation to their travel.

1. A copy of undertakings provided by the Employer is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employer provided to employees a notice of employee representational rights that was not in its prescribed form. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A)(c) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the FW Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause B3 – Abandonment of employment

• Clause B4(f) – Deduction/withholding of monies due to the employee under the NES on termination

1. However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement was approved on 13 September 2023 and, in accordance with s.54, will operate from 20 September 2023. The nominal expiry date of the Agreement is 13 September 2025.

COMMISSIONER

Annexure A

[1] Clause 11.3(a)(ii).

[2] Re Top End Consulting[2010] FWA 6442, [46].

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