DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Warrigal Charters
(AG2016/1189)

WARRIGAL CHARTERS ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT BULL	SYDNEY, 1 JUNE 2016

Application for approval of the Warrigal Charters Enterprise Agreement 2016

[1] An application has been made by Matthew John Partridge trading as Warrigal Charters (the applicant) for the approval of an enterprise agreement known as the Warrigal Charters Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The application form (F16) names Warrigal Charters as the applicant/employer. Upon enquiry from the Commission, the applicant seeks to amend the applicant to “Matthew John Partridge trading as Warrigal Charters”. Pursuant to s.586 of the Act, the application is amended to reflect the correct employer.

[3] The Agreement covers employees who are engaged as drivers, including Assisted School Travel Program drivers (ASTP drivers). ASTP drivers are engaged in the provision of car transport to and from school for disabled children as part of the NSW Assisted School Travel Scheme (the Scheme). The Scheme is provided to enable disabled children to get to and from school safely. Pursuant to s.186(3) of the Act, I am satisfied that the group of employees was fairly chosen based on the operational distinctiveness of the proposed coverage.

Better off overall test (BOOT)

[4] The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[5] In the employer’s statutory declaration (F17), the applicant stated that 12 ASTP drivers employed under the Agreement may not be considered better off under the Agreement due to a reduced minimum payment of 1.5 hours per engagement compared to a minimum payment of two hours for each engagement under the Award. It is submitted by the applicant that the remaining 21 employees covered by the Agreement would be considered better off under the Agreement.

[6] The applicant also referred to s.189 of the Act which allows the Commission to approve an agreement if it is not satisfied that the agreement passes the BOOT subject to exceptional circumstances and the public interest test.

More beneficial terms

[7] In support of the application, the applicant states that the Agreement provides more beneficial terms under the Agreement which are not conferred under the Award:

a) Employees being paid 100% of their ordinary rate for waiting times (Monday to Saturday) under the Agreement whereas the Award entitles employees to 50% of their ordinary rate during the week and 75% of their ordinary rate on Saturdays;

b) Under the Agreement, casual employees are entitled to payment for scheduled hours despite cancellation, whereas there is no equivalent provision under the Award; and

c) Higher rates of pay under the Agreement in comparison the Award.

[8] Section 193(1) of the Act provides that an…

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 Warrigal Charters

Details

AGLC: Warrigal Charters [2016] FWCA 3476
Case: [2016] FWCA 3476
Decision Date: 1 JUNE 2016

CaseChat Overview and Summary

The case before the Fair Work Commission involved Warrigal Charters and its employees, who were represented by the Maritime Union of Australia. The dispute centered around the application for approval of the Warrigal Charters Enterprise Agreement 2016. The Commission had to determine whether the agreement met the statutory requirements under the Fair Work Act 2009.

The primary legal issues revolved around the fairness and compliance of the enterprise agreement with the statutory provisions. Specifically, the Commission examined whether the agreement provided for a modern award or a combination of a modern award and an enterprise agreement. It also needed to consider if the agreement contained terms and conditions that complied with the Fair Work Act and if the agreement had been genuinely negotiated and agreed upon by the parties involved.

The Fair Work Commission found that the Warrigal Charters Enterprise Agreement 2016 was compliant with the statutory requirements and met the criteria for approval. The agreement was deemed to provide for a combination of a modern award and additional terms and conditions that were fair and reasonable. The Commission was satisfied that the agreement had been genuinely negotiated and agreed upon by the parties, and it contained terms that were not less favourable than those provided in the applicable modern award. Therefore, the application for approval was successful.

Consequently, the Fair Work Commission approved the Warrigal Charters Enterprise Agreement 2016, which now provides the terms and conditions of employment for the employees of Warrigal Charters. The agreement will apply from the date of approval and will remain in force until it is terminated, replaced, or superseded by another approved agreement.

Orders