Warrigal Charters

[2016] FWCA 3476

[2016] FWCA 3476

FAIR WORK COMMISSION

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 enterprise agreement passes the BOOT if the Commission is satisfied, at test time, that each award covered employee, and each prospective award covered employee would be better off if the agreement covered the employee than if the relevant modern award covered the employee 1.

[9] On the basis that casual ASTP employees (as opposed to 21 non ASTP drivers covered by the Agreement) receive a reduced minimum engagement payment under the Agreement, the Commission cannot be satisfied that the Agreement passes the BOOT. As such, I am not of the view that the Agreement satisfies the better off overall test as required under s.186 of the Act.

s. 189(2) of the Act

Exceptional circumstances

[10] As submitted in the alternative, should the Commission not be satisfied that the Agreement meets the BOOT, there was a public interest in the Agreement being approved pursuant to s.189 of the Act.

[11] The Commission is not of the view that the Agreement satisfies the BOOT. It is therefore necessary to consider whether the Agreement can be approved under s.189 of the Act, on the basis that because of exceptional circumstances, approval of the Agreement would not be contrary to the public interest.

[12] Section 189 of the Act provides instances when the FWC may approve an enterprise agreement that does not pass better off overall test with regard to the public interest test:

            “ 189(1)  This section applies if:

(a) the FWC is not required to approve an enterprise agreement under section 186; and

(b)  the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

189(2)  The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

189(3)  An example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.”

Nominal expiry date

189(4)  The nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following:

(a) the date specified in the agreement as the nominal expiry date of the agreement;

   (b)  2 years after the day on which the FWC approved the agreement.

[13] The Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 2examined the ordinary meaning of exceptional circumstances at paragraph 13 of that decision:

“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.”

(My underline)

[14] The submissions of the applicant stated that arrangements in the Agreement for the minimum payment of 1.5 hours, rather than two hours per engagement were made in the context of New South Wales legislation, that the Education Department mandates that no child is to be transported for longer than 90 minutes either going to school or returning from school.

[15] It is submitted that the requirements and work performed can be characterised as ‘special’ because of the nature in which drivers are engaged to transport disable school children under the State Government’s Assisted School Travel Scheme. In particular, travel time limitations placed on drivers by the education department as well as the eligibility of children for this program and the presence of children’s assisted support officer.

[16] I accept that the time restraint imposed on the operations of the applicant can be construed as an exceptional circumstance justifying the application of s.189.

Public interest

[17] Having established that the Agreement does not meet the better off overall test in respect of ASTP drivers, and that ‘special’ circumstances apply, the Commission may only approve the Agreement if it is not contrary to the public interest.

[18] The Full Bench in Transport Workers’ Union of Australia v Jarman Ace Pty Ltd T/A Pty Ltd Ace Buses 3 at paragraph 34 stated:

“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.”

[19] The test in s. 189(2) is whether 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. 

[20] Public interest was examined in O’Sullivan v Farrer (1989) 168 CLR 210, the High Court said (at 216):

“… the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (N.S.W.) v. Browning, per Dixon J.”

(Citation omitted.) (Editing in original)

[21] Having regard to the submissions of the applicant, I am satisfied that, given the important community service the applicant is engaged in, it would not be contrary to the public interest for the 12 ASTP driving employees to work under the Agreement, so as to meet the critical needs of their passengers 5.

Approval

[22] I am satisfied that each of the requirements of sections 186, 187 and 188 and 189 of the Act that are relevant to this application for approval have been met, and that such other requirements of the Act have been met.

[23] In my view, based on the submissions of the applicant, it is sufficient to establish that the applicant’s business is subject to interacting factors that generate exceptional circumstances; namely the time limitations imposed on the transportation of children to and from school. For reasons outlined above, I am satisfied that approving the Agreement is not contrary to the public interest.

[24] The Agreement is approved under s.189 of the Act and will operate from 8 June 2016 with a nominal expiry date of two years from the date of this decision.

DEPUTY PRESIDENT

 1   Duncan Hart and Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd[2016] FWCFB 2887

 2   [2011] FWAFB 975

 3   [2014] FWCFB 7097

 4   As stated by Deputy President Bartel in Top End Consulting [2010] FWA 6442

 5  See for example Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338.

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