Thomas Colquhoun Pty Ltd - [2022] FWCA 2799

[2022] FWCA 2799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Thomas Colquhoun Pty Ltd

(AG2022/3053)

Thomas Colquhoun Pty Ltd Enterprise Agreement 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER MATHESON	SYDNEY, 17 AUGUST 2022

Application for approval of the Thomas Colquhoun Pty Ltd Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Thomas Colquhoun Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made by Thomas Colquhoun Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The Passenger Vehicle Transportation Award 2020 (Award) is the relevant instrument for the purposes of the better off overall test. The Agreement covers 36 employees engaged in the transport of school children with disabilities, to and from school, under the auspices of the ‘Assisted School Travel Program’ (Program). The Program is administered by the NSW Department of Education and involves the transportation of disabled children by an Assisted Support Officer (Officer), who is a departmental employee separate from the driver.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings addressing concerns raised by the Commission in relation to whether the Agreement passes the better off overall test. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

However, there was a residual concern raised by the Commission in relation to the better off overall test that was not satisfied by the Undertakings or explanations provided by the Applicant. In particular, clause 11.3(a)(ii) of the Award prescribes a casual minimum engagement of two hours and clause 8.2(d) of the Agreement prescribes a minimum engagement of 1.5 hours. It is declared in the Form F17 that the Agreement does not pass the better off overall test in this regard, however, by way of summary, the Applicant submits that approving the Agreement will not be contrary to the public interest for the following reasons:

· The minimum engagements under the Agreement need to be understood in the context of the Program, which imposes time-based restrictions for the transportation of a disabled child and accompanying Officer. In particular, it is declared in the Form F17 that runs are contractually restricted to the extent of an outer limit of 90 minutes, other than in exceptional circumstances with the approval of the Department.

· Employees are paid from the time of departure from their homes and the time to return to their homes and completing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Thomas Colquhoun Pty Ltd [2022] FWCA 2799
Case: [2022] FWCA 2799
Decision Date: 17 AUGUST 2022

CaseChat Overview and Summary

Thomas Colquhoun Pty Ltd applied for approval of the Thomas Colquhoun Pty Ltd Enterprise Agreement 2022, a single enterprise agreement, under section 185 of the Fair Work Act 2009. The agreement covers 36 employees who transport school children with disabilities as part of the 'Assisted School Travel Program' administered by the NSW Department of Education. The agreement provides for a minimum engagement of 1.5 hours, whereas the Passenger Vehicle Transportation Award 2020 prescribes a casual minimum engagement of two hours. The applicant provided undertakings to address concerns about whether the agreement passed the better off overall test, and the commissioner accepted these undertakings. However, the commissioner still had concerns about the minimum engagement time. The applicant submitted that the special needs of disabled school children, time limitations, rules, and funding arrangements made the circumstances exceptional, and that it would not be contrary to the public interest to approve the agreement.

The commissioner considered whether the circumstances were exceptional and whether it would be contrary to the public interest to approve the agreement. The commissioner found that the special needs of disabled school children, the time limitations and rules imposed on their travel, and the funding arrangements made the circumstances exceptional. The commissioner also found that it would not be contrary to the public interest to approve the agreement because of the importance of the service in ensuring that disabled children are able to be transported to and from school in a way that meets their special needs.

The commissioner approved the agreement and determined that it would operate from 24 August 2022, with a nominal expiry date of 17 August 2024. The model flexibility term and model consultation term prescribed by the Fair Work Regulations 2009 were taken to be terms of the agreement. The commissioner was satisfied that all relevant requirements of the Fair Work Act 2009 had been met.

Orders