Transit Australia Pty Ltd T/A Capricorn Coast Sunbus

[2017] FWCA 1918

[2017] FWCA 1918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transit Australia Pty Ltd T/A Capricorn Coast Sunbus
(AG2016/7594)

CAPRICORN COAST SUNBUS UNION ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non rail) industry
COMMISSIONER GREGORY	MELBOURNE, 5 APRIL 2017

Application for approval of the Capricorn Coast Sunbus Union Enterprise Agreement 2016.

Introduction

[1] Transit Australia Pty Ltd T/A Capricorn Sunbus (“Transit Australia”) has made application for approval of the Capricorn Coast Sunbus Union Enterprise Agreement 2016 (“the Agreement”). It is a single enterprise agreement and covers 26 employees working out of Transit Australia’s Depot in Rockhampton.

[2] After reviewing the application and the form F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought clarification about some aspects of the Agreement. The Transport Workers’ Union of Australia (Queensland Branch) (“the TWU”), who are a bargaining representative for the Agreement, also filed a F18 Statutory Declaration indicating it takes issue with various matters concerning both the process involved in making the Agreement, and with satisfaction with the requirements of the “better off overall” test.

[3] The Commission subsequently received correspondence dated 3 March 2017 from the Applicant’s representative providing responses to a number of the issues raised by the Commission. The TWU was copied into that correspondence and on 16 March 2017 provided a response, which took issue with several of the matters dealt with on behalf of Transit Australia. The TWU asked that its views be taken into account in dealing with the application, but it was now prepared to have the Commission determine the matter based on the written materials before the Commission. However, Transit Australia requested that the matter be dealt with by way of a hearing.

[4] The application was accordingly dealt with in a hearing on 30 March 2017. Mr Ian MacDonald, the National IR Manager from the Australian Public Transport Industrial Association appeared on behalf of Transit Australia, together with Ms Erin Coleman, the General Manager – Human Resources at Transit Australia. Ms Margarita Cerrato, who is an Industrial Officer with the TWU in Queensland, appeared on behalf of the Union. The hearing was conducted by telephone.

The Submissions and Evidence

[5] The issues that have been raised in regard to the application are dealt with under the following headings. The respective submissions of the Transport Workers’ Union and Transit Australia are summarised under each heading.

Notification time

[6] Ms Coleman provided an amended Employer’s Statutory Declaration on behalf of Transit Australia, which now indicated that a copy of the Agreement and notification of the ballot was provided by hand at the Depot in Rockhampton to all eligible employees. This was in addition to information posted on the notice board in the Depot. In addition, details about the ballot and the method of voting were posted to all employees by ordinary mail.

[7] The TWU raised an issue about an apparent conflict between the information provided by Transit Australia about whether there were actually employees on leave at the time. It also indicated that it appeared that some employees, who were not on leave, might have been reliant on the relevant information and materials being sent by post and this raised an issue about whether it would have been received within the relevant timeframe. However, the Union also indicated in its submissions that it was not actually aware of any specific examples involving any employees who had not received the relevant materials in accordance with the statutory requirements.

[8] I am satisfied in response, based on information contained in the revised Form F17 Statutory Declaration, that the relevant requirements have been complied with. In this context I refer, in particular, to the response provided at question 2.5, “When did you notify the relevant employees of the date and place at which the vote was to occur and the voting method to be used?” 1 It indicates in part, “Between 21 November 2016 and 23 November 2016 the agreement and notification of the ballot was also provided by hand at the Depot to all eligible employees.”2 The Declaration continues to indicate that voting for the Agreement then commenced on 30 November 2016 with 21 of the 26 employees casting a valid vote.

The National Employment Standards – Annual Leave

[9] The Commission sought clarification from Transit Australia about whether the provisions concerning payment for periods of annual leave actually complied with the requirements in the NES that an employee on annual leave will be paid for their ordinary hours of work in that period of leave. The Commission was also concerned that the “cashing out” of annual leave provisions in the Agreement did not necessarily confirm the NES requirement that an employee is entitled to receive at least the full amount they would have received had they taken the leave. The TWU also made reference to these matters and questioned whether an undertaking proposed by Transit Australia dealt with each of these concerns.

[10] Transit Australia indicated in its submissions that it understood at all times that it was required to comply with the National Employment Standards (“NES”) in all respects. It noted that clause 1 of the Agreement indicated it was made in accordance with the NES. It also made reference to the provisions contained in clause 21.1.1 of the Agreement, which indicate that “Annual leave entitlements are provided for in the National Employment Standards at division 6,” 3 and that the annual leave provisions should be read in conjunction with the NES.

[11] However, it has also now provided undertakings which provide further clarification about these issues. I am satisfied in response that these undertakings remove any uncertainty that might have existed about whether the annual leave provisions comply with the requirements of the National Employment Standards.

Cleaner/refuellers

[12] The TWU submits that these employees are only entitled to receive terms and conditions that mirror those contained in the underlying Passenger Vehicle Transportation Award 2010 (“the Award”). 4 It acknowledges that they might be able to access various entitlements that are in addition to those contained in the Award, but this ability is generally contingent on certain circumstances existing. Therefore there is no guarantee that these additional entitlements will be accessed by the employees. The TWU accordingly submits that it is not possible to conclude that these employees would be “better off overall” under the terms and conditions contained in the proposed Agreement.

[13] Transit Australia submits, in response, that there are only two employees in this category. It also notes that the wage rates for most other employees covered by the Agreement are around 5% above the relevant Award rates. It also points to various clauses in the Agreement, which have entitlements which “provide better working conditions for a cleaner/refueller as against the provisions in the PVTA…” 5 It refers in this context to clause 10 “Conduct of the Parties,” clause 12 “Recruitment,” clause 17.6 “Payment for Meetings and Other Engagements,” clause 24 “Workplace Consultative Committee,” and clause 31 “Media and Social Media.”

[14] It also notes that the Commission made reference previously to clause 20 “Superannuation,” which both allows for employees to authorise additional post-tax superannuation payments, subject to acceptance by the relevant Fund, as well as allowing employees to choose to have part of their pre-tax wages to be salary sacrificed as additional superannuation contributions.

[15] It also made reference to sub clause 21.4 which allows for accrued personal leave to be used in the unfortunate event of circumstances involving domestic violence. It also referred to the additional entitlements provided for employees acting in the role of Union delegates in clause 26.

[16] It is acknowledged in response that most of the clauses in the Agreement referred to in this context can be described as “contingent.” They only apply in the event of certain circumstances existing, or particular events arising. However, the additional entitlements regarding superannuation appear to be in a different category in that they can be accessed as an entitlement as a consequence of decisions made by each employee.

[17] I am also mindful of the recent Full Bench decision in Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo, which concluded after considering what the “better off overall” assessment requires:

“However the application of the BOOT requires satisfaction, as at the test time, that each Award covered employee and each prospective employee would be better off overall under the Agreement.” 6

[18] However, it would be an extremely rigid application of the test to suggest that in the present circumstances the proposed Agreement does not satisfy this test because of the circumstances involving the cleaner/refuellers. I have already made reference to the provisions in the Superannuation clause. However, leaving aside those additional entitlements I am still satisfied that the Agreement contains a more comprehensive range of entitlements and benefits than the Award for the cleaner/refuellers, even if some are only available in certain circumstances. On that basis I am also satisfied that it meets the requirements of the “better off overall” test.

Mentor Drivers

[19] Both the Commission, in its initial response to the application, and the TWU highlighted issues to do with the terms and conditions pertaining to the Mentor Drivers classification. The Commission initially noted that the rate to be paid for this classification appeared to be less than the rate provided for in the Award. Transit Australia subsequently proposed an undertaking providing that employees performing these duties would be paid at the Grade 5 classification rate in the Award.

[20] The TWU responded by submitting that when these employees are on annual leave they would no longer receive the Grade 5 rate, and accordingly could still be considered to be worse off. However, Transit Australia made reference in its oral submissions to sub clause 19.3. It provides that “Permanent Mentor Drivers will receive an allowance of $43.70 per week.” 7 It also provides that casual employees performing this role will receive an additional amount of $1.15 per hour. It also provides for this allowance to be increased during the life of the Agreement by the same percentage as applies to the increases in base rates of pay.

[21] Transit Australia submits that the availability of this allowance leaves the Mentor Drivers better off when compared with the Award, regardless of any considerations raised about the taking of annual leave, in that any permanent employee receiving the allowance over the course of a full year will be receiving entitlements that are clearly “better off overall” compared with an employee performing the same role under the Award.

[22] After reviewing the terms and conditions contained in the Award, and those contained in the proposed Agreement, I am also satisfied that the provision of this allowance leaves employees performing this work “better off overall” under the terms and conditions contained in the Agreement.

Conclusion

[23] As indicated, Transit Australia has provided written undertakings in response to various matters raised by the Commission. A copy of those undertakings is attached and contained in Attachment A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement, and do not result in substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement as provided for by s.191 of the Act.

[24] I am also satisfied that each of the requirements of ss.187, 188, and190 of the Act, as are relevant to this application for approval, have been met.

[25] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover the organisation. In accordance with s.201(2) I note that the Agreement covers the organisation.

[26] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 April 2017. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

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Attachment A

Appearances:

I MacDonald of Australian Public Transport Industrial Association with E Coleman on behalf of the Applicant.

M Cerrato for the Transport Workers’ Union of Australian (Queensland Branch)

Hearing details:

2017.

Melbourne (by telephone):

March 30.

 1   Revised Form F17 – Employer’s statutory declaration, signed 3 March 2017 at question [2.5].

 2   Ibid.

 3   Proposed Capricorn Coast Sunbus Union Enterprise Agreement 2016 at [21.1.1].

 4   MA000063.

 5   Submissions of the Applicant, dated 3 March 2017 at page 3.

 6   Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo[2016] FWCFB 2887 at [15].

 7   Above n 3 at [19.3].