Thomas Colquhoun Pty Ltd
[2022] FWCA 2799
•17 AUGUST 2022
| [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 the assignment. However, payment by the Department is made on the basis of kilometres travelled in providing the service, being the distance travelled from the disabled child’s home to and from their school and time spent driving does not influence payment by the Department. No payment is made to the business by the Department for distances travelled by an employee to or from the child’s home or to and from the school when there is no child on board.
· The contract with the Department imposes an obligation to use the shortest practicable route in the execution of every school run and the business is structured in a way to accommodate this requirement with the effect that there are runs where the entire task, including the travel time of the employee to the pick-up point and return to their home, is well under two hours.
· The circumstances are special in relation to the needs of disabled school children and the governing rules, protocols and funding arrangements for their transport.
· The Program is of considerable value to the affected families and it is in the public interest to sustain it.
The Applicant also directed me to the decision of the Full Bench in Transport Workers’ Union of Australia v Jarman Ace Pty Ltd T/A Ace Buses[1] involving an agreement covering bus drivers that transport physically and intellectually disabled school children and which the Applicant says is the “Queensland equivalent” of the Program. In that matter, the Full Bench upheld the decision of Deputy President Sams who found it was not contrary to the public interest to approve an Agreement in circumstances similar to those impacting this application.
Section 189 of the 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 the Commission 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 2 years after the day on which the Commission approved the agreement.
In Transport Workers’ Union of Australia v Jarman Ace Pty Ltd T/A Ace Buses, the Full Bench stated: [2]
“Section 189 of the Act requires a decision-maker to make a discretionary decision in determining if he or she is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.”
In Nulty v Blue Star Group Pty Ltd,[3] the Full Bench said:
“In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The test in s.189(2) of the 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.[4]
Having regard to the submissions of the Applicant, I am satisfied that exceptional circumstances arise as the circumstances are special in relation to the needs of disabled school children, the time limitations and rules imposed in relation to their travel and funding arrangements in place impacting the service provided to them. I am also satisfied that, given the importance of service in ensuring that disabled children are able to be transported to and from school in a way that meets their special needs, it would not be contrary to the public interest for the Agreement to be approved.
Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Regulations) is taken to be a term of the Agreement.
Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.
Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2022. The nominal expiry date of the Agreement is 17 August 2024.
COMMISSIONER
Annexure A
[1] [2014] FWCFB 7097.
[2] [2014] FWCFB 7097, [34].
[3] [2011] FWAFB 975, [13].
[4] Re Top End Consulting[2010] FWA 6442, [46].
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