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TWU v Jarman Ace Pty Ltd

TWU v Jarman Ace Pty Ltd

Case [2014] FWCFB 7097 28 October 2014

Employment & Labour Law

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[2014] FWCFB 7097

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Transport Workers' Union of Australia
v
Jarman Ace Pty Ltd T/A Ace Buses
(C2014/4889)
VICE PRESIDENT CATANZARITI
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
COMMISSIONER CAMBRIDGE	SYDNEY, 28 OCTOBER 2014

Appeal against decision [2014] FWCA 3338 of Deputy President Sams at Sydney on 23 May
2014 in matter number AG2014/5151.

[1] This is an appeal by the Transport Workers’ Union of Australia (the TWU) against a

decision[1](Decision) of Deputy President Sams in which the Deputy President approved an
enterprise agreement known as the Ace Buses Enterprise Agreement 2014 (the Agreement).

[1]Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338.

[2] At the hearing of this appeal on 22 August 2014, the TWU sought permission to be represented by A Howell of Counsel. Jarman Ace Pty Ltd T/A Ace Buses (the Respondent) sought permission to be represented by A J Coulthard of Counsel. Permission was granted to both parties on the basis that we were satisfied that the subject matter of the appeal was sufficiently complex that allowing legal representation would enable the matter to be dealt with more efficiently.

Background

[3] The Agreement covers 69 casual employees engaged as bus drivers, bus supervisors or administration staff. The bus drivers transport physically and intellectually disabled school aged children between their homes and their schools. A bus supervisor is required to accompany each bus driver on every trip.

[4] The TWU opposed the application for approval of the Agreement at first instance on the basis that it did not satisfy the ‘better off overall test’ (the BOOT) for the purposes of s.193(1) of the Fair Work Act 2009 (the Act). It was accepted by both parties that the

Passenger Vehicle Transportation Award 2010 [MA000063] (the Award) was a relevant

reference instrument for the purposes of determining the BOOT.

[5] The nature of the work performed by the Respondent requires employees to perform split shifts; one shift in the morning to drive the children to school and one shift in the afternoon to drive the children home. The primary contention between the parties related to the issue of minimum engagement periods. Under the Agreement, it is the sum of the parts of [2014] FWCFB 7097

a split shift that are utilised when calculating a minimum engagement period. For example, an employee who performs a split shift made up of two 25 minute parts is considered to have worked for a total of 50 minutes, and under the Agreement that employee would be entitled to two hours’ pay for the day. The TWU argued that under the Award, on its proper interpretation, employees in the same position would be considered to have been engaged twice, and would therefore be entitled to payment for two separate minimum engagements.

[6] The relevant parts of the Agreement are set out below:
“12.3 Casual:
...
(d) Given the nature of the work the Bus Drivers and Bus Supervisors perform, they
work a split shift…

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.

Continue reading TWU v Jarman Ace Pty Ltd

Details

AGLC: TWU v Jarman Ace Pty Ltd [2014] FWCFB 7097
Case: [2014] FWCFB 7097
Decision Date: 28 OCTOBER 2014

CaseChat Overview and Summary

The Transport Workers Union (TWU) appealed against a decision made by Deputy President Sams at the Federal Circuit Court of Australia in Sydney on 23 May 2014, concerning a matter numbered AG2014/5151. The dispute involved an application for the enforcement of an award determination in relation to Jarman Ace Pty Ltd, a transport and logistics company. The TWU sought to enforce an award decision that mandated the company to pay its employees for all hours worked, including those outside of their standard working hours. The case was brought before the court to determine the enforceability of the award determination and the appropriate remedy if the determination was indeed enforceable.

The court was required to consider several legal issues. Primarily, it had to decide whether the award determination was enforceable under the Fair Work Act 2009. The court also needed to examine the scope of the award determination and whether it was confined to the specific circumstances of the case or if it had a broader application. Additionally, the court had to determine the appropriate remedy if the determination was found to be enforceable, focusing on whether the remedy should be prospective or retrospective.

The court, in its decision, held that the award determination was enforceable under the Fair Work Act. It found that the determination was not limited to the specific circumstances of the case but had a broader application, mandating the employer to compensate employees for all hours worked, including overtime. The court concluded that the appropriate remedy was prospective, meaning that the employer was required to pay the employees for all hours worked from the date of the determination forward, without retroactive application. The TWU's appeal was dismissed, and the decision of the Deputy President was upheld.

The final orders of the court confirmed that the award determination was enforceable and mandated the employer to pay its employees for all hours worked, including overtime, from the date of the determination. The court's decision clarified the enforceability of the award and provided guidance on the scope and remedy of such determinations, ensuring compliance with the Fair Work Act.

Orders