Shoal Bus Pty Limited

[2016] FWCA 8539

[2016] FWCA 8539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Shoal Bus Pty Limited
(AG2016/5540)

SHOAL BUS BUS AND COACH DRIVERS ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 6 DECEMBER 2016

Application for approval of the Shoal Bus Bus and Coach Drivers Enterprise Agreement 2016

[1] An application has been made by Shoal Bus Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Shoal Bus 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 employees of the applicant who are employed as route and school bus drivers and charter and long distance drivers. 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 Commission wrote to the applicant, suggesting that the model flexibility term should apply to the Agreement. The reason for this is that the flexibility term contained within the Agreement differs in some areas from that of the model flexibility term. For instance, the flexibility term in the Agreement does not stipulate that an individual flexibility arrangement must be provided to the employee within 14 days, pursuant to s.203(7). The flexibility term also appears to make incorrect reference to the Award rather than the Agreement.

[4] The applicant was in agreement that the model term should apply, therefore, 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)

Classifications

[5] 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 one classification 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 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.

[7] Further, the applicant has undertaken to perform a reconciliation of payments at the end of each shift period to ensure that no employee receives payment over any weekly shift cycle which is less than they would receive if covered by the Award.

Ordinary hours

[8] The Commission wrote to the applicant with the concern that Clause 10 of the Agreement, referring to the maximum number of ordinary hours, appears to allow this maximum number of ordinary hours to be calculated using an average over a 12 month period. The maximum period that the Award provides for an average of 38 hours to be calculated is ‘152 hours on up to 20 days within a work cycle not exceeding 28 consecutive days’.

[9] In response, the applicant has provided an undertaking that the maximum number of ordinary hours will be as per the Award.

Allowances

[10] The Commission raised with the applicant the concern that a number of Award allowances had been removed or reduced by the Agreement. In particular, the Agreement 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.

[11] 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

[12] 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

[13] 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.

[14] 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.

[15] 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 2019.

DEPUTY PRESIDENT

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Annexure A

Annexure B