The Travel Corporation Pty Ltd T/A The Travel Corporation Pty Ltd
[2024] FWCA 3811
•31 OCTOBER 2024
| [2024] FWCA 3811 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
The Travel Corporation Pty Ltd T/A The Travel Corporation Pty Ltd
(AG2024/3638)
AAT KINGS NSW ENTERPRISE AGREEMENT 2024
| Tourism industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 31 OCTOBER 2024 |
Application for approval of the AAT Kings NSW Enterprise Agreement 2024
Introduction
The Travel Corporation Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AAT Kings NSW Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Passenger Vehicle Transportation Award 2020 (the Award).
Casual Employees Entitled to Vote
The Employer claimed that 11 casual employees (out of 20 employees) were eligible to participate in the vote on the Agreement. The Employer provided submissions showing that these employees were employed at the relevant time and entitled to vote. I am satisfied, on the basis of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others,1 the requirement in s. 181(1) of the Act has been met.
National Employment Standards (NES) precedence term in Clause 3.3 of the Agreement
Clause 10.1 of the Agreement provides that the ordinary hours of employment for full-time Employees shall be a minimum of 38 hours per week. This appears to be inconsistent with s. 62(1) of the Act which provides that an employer must not request or require an employee to work more than a maximum of 38 ordinary hours of work in a week unless the additional hours are reasonable. I note that in accordance with the NES precedence term in Clause 3.3 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Loaded Rates for Permanent Employees
Clause 20.2 of the Agreement provides that the rates of pay set out in Schedule B: Wage Rates are inclusive of all penalties including allowances and public holidays with the exception of additional pay for Public Holidays set out in Clause 19.2.
The Employer provided submissions and modelling which demonstrated that employees are consistently remunerated at rates exceeding those under the Award. Based on the shift patterns and the submissions provided by the Employer, I am satisfied that these shift patterns are reasonably foreseeable and that employees are better off overall under the Agreement when compared to the Award.
Loaded Rates for Casuals
Clause 12.2 of the Agreement provides that a casual employee will be paid the ordinary hourly rate for the applicable classification set out in Schedule B: Wage Rates, which is inclusive of a casual loading of twenty-five per cent (25%) of the ordinary hourly rate. Pursuant the decision in Loaded Rates in Agreements,2 casual employees on loaded rates may not be better off overall under the Agreement when compared to the Award.3 This is because they may be required to only work during times that attract penalty rates under the Award, such as weekends and public holidays. The Employer provided an undertaking to address this concern.
Section 190 Undertakings
The employer provided written undertakings to address the issue of Loaded Rates for Casuals. A copy of the undertakings is attached in Schedule D. 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.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Schedule E.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2024. The nominal expiry date of the Agreement is 31 October 2028.
DEPUTY PRESIDENT
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