Westside Bus Company Pty Ltd atf Westside Unit Trust T/A Bus Queensland, Bus Queensland (Lockyer Valley) Pty Ltd T/A Bus Queensland, Toowoomba Admin Pty Ltd atf Toowoomba Admin Unit Trust T/A Bus Queensland, Park...

[2023] FWCA 997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Westside Bus Company Pty Ltd atf Westside Unit Trust T/A Bus Queensland, Bus Queensland (Lockyer Valley) Pty Ltd T/A Bus Queensland, Toowoomba Admin Pty Ltd atf Toowoomba Admin Unit Trust T/A Bus Queensland, Park Ridge Admin Pty Ltd atf Park Ridge Admin Unit Trust T/A Bus Queensland

(AG2022/5371)

BUS QUEENSLAND, TRANSPORT WORKERS UNION AND BUS QUEENSLAND EMPLOYEES’ ENTERPRISE AGREEMENT 2022

Passenger vehicle transport (non rail) industry
COMMISSIONER SIMPSON	BRISBANE, 4 APRIL 2023

Application for approval of the Bus Queensland, Transport Workers Union and Bus Queensland Employees’ Enterprise Agreement 2022

Background

An application has been made for approval of an enterprise agreement known as the Bus Queensland, Transport Workers Union and Bus Queensland Employees' Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Westside Bus Company Pty Ltd atf Westside Unit Trust; Bus Queensland (Lockyer Valley) Pty Ltd; Toowoomba Admin Pty Ltd atf Toowoomba Admin Unit Trust; Park Ridge Admin Pty Ltd atf Park Ridge Admin Unit Trust T/A Bus Queensland (the Applicant). The Agreement is a single enterprise agreement.

On 9 January 2023, the matter was allocated to me. On 11 January 2023, my Chambers sent correspondence to the Applicant outlining several preliminary concerns with the application and inviting responses to those concerns by 17 January 2023.

On 17 January 2023, the Applicant replied by email outlining its response to the above concerns raised and proffering undertakings.

On 17 January 2023, the Transport Workers’ Union of Australia (TWU/Union) sent an email my Chambers raising their own concerns, then sent a subsequent email providing a response to the concerns outlined by the Commission on 19 January 2023.

A mention/directions hearing took place on 7 February 2023, and prior to this mention/directions hearing, on 23 December 2022, the TWU emailed the Commission attaching a Form F18 –Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement), wherein they advised that the Union opposed the approval of the Agreement. In Form F18, the TWU gave the following reasons for their objection:

“1. Clause 4(e): provides that the NES applies to the Agreement, but does not specify that the NES will prevail to the extent of any inconsistency which goes towards the consideration in section 186(2)(c) of the Act.
2. Clause 9(b): provides that the footwear allowance will only be paid to new employees upon completion of their probationary period, whereas existing employees can either choose to be supplied the footwear or be paid the allowance of $107 per annum. Clause 17.3(c) of the Award states that employees will either be reimbursed for all reasonable and necessary costs incurred in purchasing a uniform (including boots or other required footwear), which could amount to more than $107 per annum, unless they are provided with the uniform – this is not dependent on the employee being an existing, new or probationary employee.
3. Clause 14(b): provides that where a charter is cancelled and the employee is not given at least one hour’s notice, they will be paid two hours at ordinary rates. This appears to be less beneficial than:
• Clause 13.2(b) of the Award: where changes to the roster generally requires 24 hours’ notice;
• Clause 9.1(b) of the Award: full-time employees must receive a minimum payment of 4 hours for each shift/day engaged;
• Clause 10.8 of the Award: part-time employees must receive a minimum payment of 3 hours for each day they are engaged;
• Clause 11.3(a) of the Award: casual employees must receive a minimum payment of 3 hours, unless they are engaged solely for school transportation where they must receive a minimum payment of 2 hours for each engagement (and there can be 2 separate engagements per day).

4. Clause 15(f): provides that time taken to remedy appearances if required before commencing work will be unpaid.
5. Clause 32 and section (s) of Schedule 1: refer to the wrong Industrial Relations Act 1999 or 1996, they should refer to the Industrial Relations Act 2016 (Qld).
6. Clause 33(b): sets out that if permanent employees don’t provide 2 weeks’ notice of termination, then the company may deduct this amount from their final pay. This appears to include deductions from an employee’s NES entitlements (if authorised by the employee or a court order) and would allow the company to deduct more than one week’s wages which is all that is allowed under Clause 30.1(d) of the Award.
7. Schedule 1 provides that:
• In section (f) under school part-timers, additional hours worked by school part-timers from Monday – Friday will only be paid at 120% of the ordinary rate, whereas Clause 10.7 of the Award would provide that they are paid at overtime rates.
• In section (i) under school part-timers, these employees will not be able to take unpaid personal leave if they don’t yet have an accrued entitlement and must take leave for any of the purposes prescribed in section 97 of the NES. Rather, they will have the hours deducted from their fixed school payment.

8. The TWU notes that the Agreement wage rates for Cleaner / Yardpersons and SEU Supervisors only sit above the Award at 1.3%. Wage rates for SEU Drivers also only sit above the Award at 1.5%. Given the less beneficial matters outlined above, the TWU holds concerns that these employees are not better off overall under the Agreement.
9. Moreover, with wage rates for these employees sitting only marginally above the Award and to increase by WPI (which may fall below the annual Award increases determined by the Commission) every July under Clause 10(b), the TWU holds concerns that these employees will be ultimately paid less than the Award.
10. The TWU also has other reasonable grounds to believe that employees have not genuinely agreed to the Agreement within the meaning of section 188(c) of the Act on the basis of a Staff Information Bulletin - Update 9 (Attachment 1) issued by the Applicant to its employees on 6 December 2022 just before voting took place, which the TWU disputed with the Applicant on 7 December 2022 (Attachment 2). This Bulletin attributed a number of inaccurate, misleading and vexatious assertions to the TWU and others in a bid to pressure employees to approve the Agreement on the basis of what the Applicant alleged what would occur if employees did not approve the Agreement, including:
• That the TWU had promised to negotiate a new Multi-Employer Enterprise Agreement which will result in a higher wage increase;
•That the new laws involving multi-employer bargaining have not yet commenced, but once they do Bus Queensland cannot be involved until 9 months later;
• Bus Queensland would then expect negotiations to take more than a year; and
• That the TWU’s tactics are dependent on Queensland Government funding.

The TWU notes that only 57% of the employees who cast a valid vote, voted to approve the Agreement.”

These objections would be further particularised by the Union in subsequent submissions, with some of the issues later addressed by the Applicant.

Directions were issued for the filing of materials. Submissions and materials received were as follows:

· On 17 February 2023, the TWU filed submissions and witness statements; and
· On 28 February 2023, the Applicant filed submissions, exhibits from 1 to 28, witness statements, a spreadsheet containing a comparison with the relevant award and revised undertakings proffered by the Applicant.

A Hearing was conducted on 13 March 2023 and I granted permission for the Applicant to be represented by Ms M Brookes of Counsel instructed by Piper Alderman, and the TWU was represented by Industrial Officer Ms P Nguyen. The TWU relied on the statement and evidence of Mr James Wilkinson, Lead Bus Organiser for the TWU[1], Ms Simone McQuinlan, Casual School Driver[2], and Mr Paul Sorensen a Casual Driver.[3]

The Applicant relied on the statement of Ms Maria Saranov, Casual School Bus Driver,[4] whose evidence was admitted unopposed and on the statement and evidence of Mr Paul Davies the National Network Manager for the Pulitano Group of Companies.[5]

Four issues are before me for determination. The first is whether all casual employees who voted to approve the Agreement were employed at the time of the request to approve the Agreement within the meaning of s.181(1) of the Act (Issue 1). The second issue is whether the Agreement had been genuinely agreed to within the meaning of s.188(a) and s.180(5) of the Act (Issue 2). The third issue is whether the employees were misled with respect to whether the Agreement had been genuinely agreed to (Issue 3). The fourth issue relates to the Better Off Overall Test (BOOT) and National Employment Standards (NES) concerns within the meaning of s.193 that prevent the Agreement from passing the test under s.186(2)(d) of the Act (Issue 4).

Issue 1 - Casual Employees Vote Issues

The TWU submits that the requirement in s.188(1)(b) is yet to be established by the evidence, being whether the agreement was made in accordance with s.182(1) of the Act. These sections provide the following:

Section 182(1)
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
Section 181(1)
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

Reference was made to Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (t/as Manly Fast Ferry)[2018] FWCFB 7224 which found:

“[30] As we have earlier noted, there was an absence of evidence before the Deputy President about the nature of the engagement which underpinned the casual employment of the persons who were asked to vote to approve the Agreement. It is plain on the evidence that at least some of the employees who were asked to vote to approve the Agreement did not work on the day of the vote or during the access period. It is difficult to see how one can conclude that these employees were “employed at the time” without evidence about the terms under which they were engaged. It is equally difficult to see how one can conclude that particular casual employees were “on leave” at the relevant time without evidence about the terms under which these casual employees were engaged.
[31] That the employer “considers” the employees are regular and systematic casual employees takes the matter no further. First, because the subjective opinion of the employer is not relevant to ascertaining objectively the nature of the employment. Secondly, that a person is engaged on a regular and systematic basis is not inconsistent with the person being a casual employee whose employment is ended at the conclusion of each engagement and relevantly was not “employed” at the time he or she was asked to vote or during the access period. There is no evidence, for example, of a firm advance commitment from Noorton to continuing and indefinite work according to an agreed pattern of work which was given to any particular casual employee. This is because there is a complete absence of any material which goes to the nature of the engagement of the casual employees at issue.
[…]
[35] For these reasons, we consider that the Deputy President erred in his conclusion that the relevant employees who are casual employees and who were asked to vote to approve the Agreement were all “employees employed at the time”. It is to be remembered that the vote to approve the Agreement succeeded in effect by one vote. This required some not insignificant attention to that which the evidence did or did not disclose vis-a-vis individual members of the cohort of employees who were asked to approve the Agreement. It follows that on the basis of the paucity of evidence before the Deputy President about the nature of, and the terms under which employees were engaged as casual employees by Noorton, he could not be satisfied that the Agreement was made in accordance with s 182(1) of the Act and so could not be satisfied as to s 186(2)(a).”

The TWU subsequently submitted that the evidence relating to whether casual employees who voted were truly employed at the time of the access period still needed to be established. This is particularly because the Union calculates that it only needs to demonstrate that 20 or more votes by casual employees would be discarded because they were not employed during the access period, being the difference between the 177 votes casted to approve the agreement and the 157 votes required for a majority, out of the 312 valid votes cast. The TWU submits that 20 votes is not a wide margin, especially in the context that a majority, which the Union estimates to be approximately 200, of the 360 employees who would be covered by the agreement are casual employees. As such, further evidence is required that all of the casual employees who voted for the Agreement were not only regularly rostered to work but did in fact work during the access period, before the Commission can be satisfied that s.182(1) has been met, and therefore meeting the requirements in s.188(1)(b) and subsequently s.186(2)(a).

In response to paragraphs 6 to 14 of the TWU Submissions, the Applicant submitted that:

(a) 312 employees cast a valid vote out of a pool of 360 eligible employees;
(b) 177 employees out of 312 employees voted to approve the Agreement;
(c) 211 casual employees cast a valid vote out of a total of 240 casual employees;
(d) 132 casual employees out of 211 casual employees voted to approve the Agreement.

The Applicant submitted that there are only 11 casual employees in total who were not working during the access period (being the period from 2 to 8 December 2022), and out of the 11 casual employees who were not working during the access period, two employees were not working because they were off work receiving WorkCover benefits.

The Applicant submitted that even if all 11 casual employees were deemed to be ineligible to vote, this would not affect the outcome of the vote to approve the Agreement noting that:

(a)after removing 11 employees from the total number of employees who voted and who voted yes, 166 voters out of 301 voters still voted to approve the Agreement;
(b)after removing 11 employees from the total number of casual employees who voted and who voted yes, 121 casual voters out of 200 casual voters still voted to approve the Agreement.

Further, the Applicant submitted that the introduction of section 15A of the Act has fundamentally changed the previous common law position put forward by the TWU (and as referred to in the decisions of Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (t/as Manly Fast Ferry) 2018 FWCFB 7224 (Noorton) and Appeal by Kmart Australia Limited t/as Kmart and Ors [2019] FWCFB 7599).

The Applicant submitted that section 15A of the Act now provides a statutory definition of casual employment which will override any previous definition of casual employment that existed at common law including the definition that the TWU relies upon in Noorton. Section 15A(1) of the Act provides that:

A person is a casual employee of an employer if:

(a)an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b)the person accepts the offer on that basis; and

Section 15A(2) of the Act provides that:

For the purpose of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Section 15A(5) of the Act provides that:

A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) The employee's employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

(b) The employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

The Applicant submitted that its evidence demonstrates casual employees at Bus Queensland are employed pursuant to the requirements of section 15A of the Act since casual employees at Bus Queensland are employed on the basis that:

(a) casual employees can elect to accept or reject work that is offered to them;
(b) casual employees are required to work in accordance with the needs of Bus Queensland;
(c) the employment relationship is described as “casual” on the offer of employment; and
(d) casual employees receive a casual loading of 25%.

The Applicant submitted that having regard to the above, pursuant to subsection 15A(5) of the Act, the Applicant’s casual employees were employed at the time for the purpose of section 181(1) of the Act noting that none of the casual employees that voted in the Agreement had their employment converted to full-time or part-time employment or accepted an alternative offer of employment other than as a casual employee prior to or at the time of the vote to approve the Agreement. In all of the circumstances the Applicant submits the requirements under section 188(1)(b) of the Act have been established.

Mr Davies gave oral evidence about his understanding of the number of casuals who worked during the access period based on a conversation with Ms Moreno. Mr Davies was referred to a list of 11 names of the casuals who did not work during the access period. It was put to Mr Davies that he had not seen a full list of casual employees who were working. Mr Davies said he did see a list of approximately 240 casual employees who were deemed eligible to vote. Mr Davies accepted that he had not seen evidence of any employees who may have called in sick during the access period. Mr Davies said based on his understanding that Ms Moreno had checked the payroll records for casual employees who did not work during the access period, he believed those identified as having worked in the access period is accurate.

The TWU submitted in closing that the legislative amendments defining casual employment do not displace the Kmart decision. The TWU submitted the Applicant has put forward 11 employees who were not working but has not addressed the hundreds of other casuals.

The Applicant submitted that the TWU had not adduced any evidence that other casual employees were not employed during the access period.

Having weighed the evidence, it is unnecessary to consider the submissions as to whether the recent legislative amendments concerning casual employment displace the Kmart decision. The only evidence before me concerning the issue is the Applicant’s evidence. I am satisfied on the basis of that evidence that the number of casuals who worked during the access period was as stated by the Applicant. There is no evidence to suggest otherwise. If the eleven employees identified by the Applicant had voted it would not have altered the result. I accept the Applicant’s evidence and am satisfied the relevant statutory requirement concerning this issue have been met.

Issue 2 - Genuine Agreement Issues – all reasonable steps

With respect to the Genuine Agreement issue concerning section 180(5) and 188(1)(a), the Union stated that the Commission should decline to approve the agreement on the basis that:

the Applicant has not taken all reasonable steps to ensure that the terms of the Agreement and their effect were explained to the relevant employees in an appropriate matter taking into account the particular circumstances and needs of the relevant employees (for example, if they come from culturally or linguistically diverse backgrounds) pursuant to s.180(5) of the Act; and
the requirements in s.188(1)(a)(i) and in turn s.186(2)(a) have not been met.

There were three elements to this part of the Union’s Genuine Agreement objection. The first was that the Applicant’s addition of Schedule 1 to the Agreement, in particular the School Part-Timer provision, caused a significant and substantive change from the previous Agreement, as such further steps were required to explain their operation and effect to the employees as well as providing a comparison against how the employees would be paid under the award. The second element to this objection was that the Applicant in its Form F17 only identified two items which it states are less beneficial than the Award, when it is apparent that there are more which should have been explained that were not insignificant. The third element relates to whether undertakings can be utilised to redress these concerns, which the TWU submits there are no undertakings that can be provided to overcome the concern that the employees who were asked to approve the Agreement did not have the information designed to enable them to make an informed choice about whether to approve the Agreement, as considered in BGC Contracting Pty Ltd (t/as BGC) [2018] FWC 6936.

The TWU submitted that in the present application, there was no collaborative effort between the Applicant and the Union as found in Re Tyrone Electrical Services Pty Ltd (t/as Tyrone Electrical Services) [2020] FWC 1081 where the CEPU ran a “No Campaign”, the TWU acted in the same manner. This is in contrast to Re McDonald's Australia Pty Ltd [2010] FWAFB 4602 where the Applicant was able to rely on representations made by the Union which was part of a collaborative effort.

School Part-Timer Provisions

The TWU submitted that the Agreement in the Skout Solutions decision is distinguishable from the present application as that Agreement was essentially a “rollover” Agreement with a limited number of substantive changes. In that case, the Full Bench found that it was not necessary to provide a relevant comparison of terms and conditions between the Agreement and the relevant Awards, but that the employer had provided a high level summary of the Agreement provisions versus the Awards which was found to be reasonable and sufficient in the circumstances at paragraph 62. However, material or significant changes are likely to require more explanation than minor or trivial matters, both in terms of their operative effect and the consequences of implementation (for example, the displacement of existing rights or obligations, or the creation of new ones) (Mechanical Maintenance Solutions Pty Ltd [2019] FWC 6801 at paragraph 73).

In the present application, the TWU submitted that the School Part-Timer provisions added in Schedule 1 to the Agreement constitute a significant and substantive change from the previous Agreement and, given the complexity as to how these new provisions are to operate, further steps were required to explain their operation and effect to the employees including by providing a comparison against how the employees would be paid under the Award. This is particularly as it appears that had such an exercise been conducted by the Applicant prior, the concerns which the TWU identified in its Form F18 and subsequent submissions (and reiterated below) as to whether employees are worse off compared to the Award would have been made apparent to the Applicant.

The TWU submitted that they cannot identify in any of the documentation (as annexed to the witness statement of Mr James Wilkinson) provided to the Applicant’s employees explaining of the School Part-Timer provisions vis-à-vis the relevant Award provisions. The TWU notes that the only mention of the Award during the bargaining process was the Applicant distributing a copy of the Award along with the Agreement attached to the Staff Information Bulletin of 30 November 2022.

The TWU submit that the calculations provided to employees only set out a comparison between what a casual employee under the proposed Agreement would be paid in comparison to what a School Part-Timer would be paid. Furthermore, the calculations appear to only be provided for two scenarios involving the Grade 4 Driver rate, and not the Grade 1 or Grade 3 classifications which in its 17 January 2023 submissions the Applicant has indicated that School Part-Timers can be engaged in.

The TWU submitted the following further deficiencies regarding the calculations:
“a. It is unclear how the annual leave and personal leave hours under the new provisions were calculated in both scenarios provided by the Applicant. The TWU calculates the annual leave to be less than the 100 and 126 hours set out in Scenario 1 and 2 respectively; and
b. It is also unclear how personal leave carryover hours were calculated to the amount of 22 and 33 hours respectively, and how in both scenarios four (4) days of personal leave are hypothesised to have been taken (presumably to demonstrate the addition of the $400 payment in Clause (j) of Schedule 1), however the 4 days of personal leave themselves appear to attract no payment under the permanent part-time arrangements.”

The TWU submitted that the evidence of Mr Wilkinson, Mr Sorensen and Ms McQuinlan also demonstrate how deficiencies in the explanations provided to employees, despite the TWU’s efforts to raise these concerns with the Applicant throughout the bargaining process, not only meant that employees (particularly those who speak limited English) were unlikely to understand the provisions and their effect, they did not and still do not understand how certain aspects of the provisions would operate, including concerns in relation to:

a. How relief school drivers would fit into the arrangements, i.e. how it would impact the pay of those drivers who do urban relief work as well as school runs;
b. Confusion around what drivers who work different hours and are paid different rates would be paid;
c. Confusion around access to personal leave – in particular:
i. How personal leave would be paid accurately when factored into the fixed weekly payments based on averaged hours;
ii. Drivers became confused between payment of the ‘Reliability Bonus’ and payment of personal leave if they used one day more of sick leave that would otherwise entitle them to the bonus, and if a balance would be paid out or if it would be carried over to the next year;

d. Confusion around how annual leave was to accrue and be paid, for e.g. if there would be sufficient amount to cover the school holiday period since drivers would be required to take annual leave during that period, if annual leave could be converted to sick leave; and
e. Why overtime on weekdays would only be paid at 120% when it was their understanding that overtime should be paid at 150% as per the standard permanent part-time contracts.

The TWU submitted that should it transpire that the explanations provided to employees are not only deficient but incorrect, then the Union relies on the decision of Deputy President Mansini in Cleanaway Operations Pty Ltd [2021] FWC 3363, where it was held that to the extent that the explanation to relevant employees was not just deficient but in some important respects incorrect, this gives rise to a legitimate basis for considering that there are other reasonable grounds for considering that the Proposed Agreement was not genuinely agreed within the meaning of s 188(1)(c). That is a matter about which the discretion at s 188(2) is not able to be engaged.

While the TWU notes that the new School Part-Timer provisions are voluntary, they submit that the obligation in section 180(5) does not delineate between those terms that may have effect on relevant employees and those terms which will have no effect on relevant employees. As was held by Deputy President Gostencnik in Re BGC Contracting Pty Ltd [2018] FWC 1466:

“[97] The explanation given by an employer is one of the vehicles through which an employee becomes informed about the terms of the agreement and is able to then give informed consent, or to use the statutory phrase, to genuinely agree to the agreement. An employee voting to approve the agreement is not asked to vote to approve only those terms and conditions of an agreement which will have application to that employee. The employee and indeed all employees who will be covered by the agreement are asked to vote for or against the totality of the agreement not just aspects of it. It is for this reason that an employer is obliged by s 180(5) to take all reasonable steps to explain the terms of the whole agreement and the effect of those terms to relevant employees.
[98] The view I have expressed above is reinforced by the Full Court's judgment in One Key Workforce (No 2).”

The TWU submitted that these new provisions are not trifling, insignificant or inconsequential to warrant no or minimal explanation, and that recitation of clauses, which the TWU says are what is largely contained in the written explanations issued to employees, are not explanations of their effect. In this regard, the TWU relies on the string of recent decisions by Commissioner Johns involving the Master Builders Association of New South Wales (Re Master Builders Association ofNew South Wales [2021] FWC 1016; [2021] FWC 1267; [2021] FWC 1425; [2021] FWC 1509).

Less Beneficial Items

The TWU referred to the Form F17 where the Applicant identified only two (2) items which it states are less beneficial than the Award, however the TWU submitted that it is apparent that there are more which should have been explained that were not insignificant.

The TWU referenced the Full Bench in the Skout Solutions decision which held that:

“[63] We accept as a general proposition the Appellant's submission that a failure of an employer to identify less beneficial terms in the 2019 Agreement relative to an award in its Form F17 declaration may prima facie be an indication of an inadequate explanation of the terms of an agreement and the effect of those terms.”

While the Full Bench went on to explain that this is particularly compelling in cases where the terms of employment are regulated by an Award(s) at the time of ballot, the TWU submitted that the Commission is not prevented from taking the lack of identification of these terms into account when considering if there has been genuine agreement in the present application.

The TWU further submitted that the identification of only two less beneficial items, in the face of many more which the TWU contends further below would still need to be addressed by undertakings, is similar to the decision of Construction, Forestry,Maritime, Mining and Energy Union v Dawsons Maintenance Contractors Pty Ltd[2018] FWCFB 2992 whereby the Full Bench concluded that the number of undertakings given to address concerns about whether the better off overall test had been met, combined with the limited explanatory material and information provided to employees and the failure to identify less beneficial terms of the proposed agreement compared to the modern award either in the Form F17 statutory declaration accompanying the application for approval or the explanation to employees meant that employees could not have genuinely agreed to the agreement.

Undertakings

With respect to whether undertakings can be provided to redress these concerns, the TWU submitted that in the present circumstances there is no undertaking that can be provided to overcome the concern that the employees who were asked to approve the Agreement did not have the information designed to enable them to make an informed choice about whether to approve the Agreement (BGC Contracting Pty Ltd (t/as BGC) [2018] FWC 6936, at paragraph 45).

Further in this regard, the TWU again relied upon the string of recent decisions by Commissioner Johns involving the Master Builders Association of New South Wales (Master Builders Association of New South Wales [2021] FWC 1016; [2021] FWC 1267; [2021] FWC 1425; [2021] FWC 1509) and submitted that similarly the Commission in this instance should not engage in the theatre of providing the Applicant with an opportunity to proffer an undertaking at the Agreement approval stage that would be retrospectively cure its non-compliance with section 180(5), and that the appropriate remedy would be to re-commence the Agreement making process.

Applicant’s Submissions in Response

The Applicant submitted in response to paragraphs 15 to 32 of the TWU Submissions that:

· 341 of the 360 employees covered by the Agreement are bus drivers;

· It is a requirement of the job that bus drivers understand English as bus drivers are required to comply with various State based laws and regulations in order to undertake their roles;

· All of the bus drivers employed by Bus Queensland must complete a literacy and numeracy test on induction to the business, and if an applicant does not pass the test, the applicant will not be hired by Bus Queensland;

· Mr Paul Davies (the National Network Manager) for the Applicant held numerous meetings with employees both over the phone and in person in relation to the proposed Agreement and did not experience any difficulties communicating with any of the Applicant’s employees in any of those discussions.

· At no relevant time (including during negotiations with the TWU) did the Applicant receive any reports - including from the TWU and the negotiation committee - of any person not understanding the terms of the Agreement due to speaking English as a second language.

· The TWU has not submitted any direct evidence any person had difficulty understanding the terms of the Agreement because they spoke English as a second language (and it is noted that speaking English as a second language does not necessarily mean a person has a limited understanding of English);

· The TWU’s evidence on this point is, at best, opinion evidence and it is submitted such evidence should be given limited weight.

· In relation to the School Part-Timer provisions, it is submitted the Applicant undertook a number of additional steps to explain the School Part-Timer provision to employees including:

(a)Providing seven (7) Staff Information Bulletins which answered the questions directly raised by employees about the School Part-Time provisions;
(b)Mr Davies providing his personal number to be contacted by employees if they had any queries about the Agreement, and answering such calls by employees who had questions;
(c)Providing detailed calculations of how the School Part-Timer provisions would apply to existing casual employees if they wished to take up the offer; and
(d)Mr Davies attending face to face meetings with employees (both pre-arranged and on an ad-hoc basis).

In the circumstances, the Applicant submitted it took all reasonable steps to explain the Agreement to employees such that, at the end of the extensive consultation undertaken by the Applicant, it was satisfied any employee with a question about the Agreement had received a reasonable opportunity to have that question answered.

In relation to the suggestion the Applicant was required to explain the Agreement as against the Passenger Vehicle Transportation Award 2020 (the Award), the Applicant submitted there were three previous enterprise agreements that applied to employees dating back to 8 May 2013.

In particular, the Bus Queensland, Transport Workers Union and Bus Queensland Employees’ Enterprise Agreement 2019 (2019 Agreement) would continue to apply to employees if the proposed Agreement was voted down. In these circumstances, whilst the School Part-Timer provision was a novel provision, the relevant comparator at all times was casual employment under the 2019 Agreement. In all of the circumstances, the Applicant submits employees had all of the information necessary to make a decision about the Agreement and no issue in relation to undertakings on this point arises.

Mr Wilkinson during oral evidence agreed that the TWU did not get its no campaign material or other communications translated into any other languages.

Ms McQuinlan agreed she did not do any casual relief driving. Ms McQuinlan gave evidence that she was unable to attend most of the meetings because of her rostering arrangements. Ms McQuinlan accepted she was aware of the meetings and saw the bulletins coming out. Ms McQuinlan was referred to staff information bulletins of 30 November, 6 December and 7 December 2022. Ms McQuinlan accepted that she saw the bulletin with the schedule of meetings.

Ms McQuinlan was referred to a work roster for the week of 30 October. Ms McQuinlan did not dispute there was a meeting at 9.30am on the Tuesday 25 October 2022, and said she had a weekly exercise physiologist appointment. It was put to Ms McQuinlan that there were two meeting on 6 December 2022, one at 5am and one at 9.30am. Ms McQuinlan said she was unable to go to those meetings. Ms McQuinlan accepted that Mr Paul Davies on behalf of the Applicant had provided on the bulletins his phone number to contact if employees who were unable to attend meetings wished to raise any concerns. Ms McQuinlan accepted she did not attempt to call Mr Davies.

Ms McQuinlan was referred to her evidence that she was concerned that some employees had limited English. Ms McQuinlan appeared to accept that she did not report the issue to her Union delegate.

Mr Sorensen was referred to his evidence where he estimated about 12 drivers in the Toowoomba Yard had English as a second language. Mr Sorensen said he was unaware that the Applicant had a literacy test for all employees prior to commencement of their employment. Mr Sorensen agreed Mr Davies attended Toowoomba on 2 December between 5.30am and 10.30am. Mr Sorensen accepted that there may have been one on one meetings that he was unaware of if he was out on the road.

Mr Sorensen said approximately 25 to 30 drivers were possibly eligible for the part time permanent role and these employees range from 20 to 29 hours and the company only supplied a rate for 25 hours. Mr Sorensen agreed that all the drivers in Toowoomba were grade 4.

Mr Davies was asked about his evidence that the Applicant does not hire any employees who do not pass a literacy test, and was referred to the literacy test and he agreed the test was relatively basic. Mr Davies was also referred to the following part of his evidence:

“As part of the induction process, bus drivers are also required to read and understand a number of induction and training documents which are all written in English. Bus drivers are then required to complete an induction assessment in English and are required to get all of the answers correct in order to pass the test. A copy of the induction assessment is located on pages 182A to 182O of Exhibit PD-1 to this statement.”

It was put to Mr Davies that the literacy assessment could not be used to understand an enterprise agreement. Mr Davies, disagreed, saying the test required an employee to demonstrate understanding of simple and more complex issues. Mr Davies said the Applicant had also provided advice that employees could seek further clarification from him if required.

Mr Davies was taken to the various bulletins issued and the extent of information contained in them, including specifically with reference to the School Part Time provisions and the calculations for two separate scenarios. Mr Davies did not accept that how the provision would work was not explained. Mr Davies said information was provided to allow employees to contextualise the provisions. Mr Davies said the 30 November memorandum stepped out how the Agreement would work and more information was provided in Update 10 which would have assisted employees. Mr Davies said the 30 November memorandum was accompanied by a copy of the Agreement in full.

Mr Davies agreed that the 3 July rate was used for the purpose of the first rate proposed in the Agreement, however subsequent to that first offer, the rates were then split across two wage increases in a subsequent offer. Mr Davies said the offer was also amended to include another allowance. It was put to Mr Davies that the offer was not compared to the part time provisions in the Award. Mr Davies said that employees had a copy of the relevant clause, that Annual leave provisions accrue at the higher rate than the NES and on all hours worked up to 38 hours. Mr Davies said during the period 30 November 2022 to 7 December 2022 he received approximately 15 to 20 calls on his personal mobile phone number from employees of Bus Queensland wishing to discuss the proposed Agreement. He said he would have received an additional 10 calls in relation to the Agreement prior to 30 November 2022. He estimated he would have received about 30 phone calls.

Mr Davies said a lot of the conversations were related to the School Part Time provisions. Mr Davies said the conditions were not compared to the Award Part time provisions because the employees were casual, and the Award provision was not a correct comparator because it does not provide for employees who only work for 40 weeks in the year. Mr Davies accepted the proposed School Part Time provisions had not existed in previous agreements. Mr Davies said it was designed to deal with the situation of employees having no income during the non-school period. Mr Davies said you could not engage a school bus driver as a part time employee under the Award (because they work 40 weeks a year).

Mr Davies was asked why certain overtime scenarios were not provided as calculations. Mr Davies said the scenarios raised by the Union were unlikely to arise as it would not be consistent with the scenarios that the school bus drivers work.

A scenario was put to Mr Davies concerning the performance of an additional shift during school holidays. Mr Davies said a casual would not receive overtime for such a shift, a part timer would receive level 4 rates at higher duties rates as it would be urban work and would also receive higher rates of leave accruals, loading and superannuation on those hours.

Mr Davies said all Toowoomba Depot employees are Grade 4. Mr Davies gave evidence that of the employees that are eligible for the School Part-timers provision, only four are not paid at Grade 4 rates. There are two employees that are paid at the Casual Grade 3 rate and two employees are paid at the Casual Grade 1 rate. All four employees work at the Lockyer Valley depot. One of these employees had been away due to an injury since October 2022. That employee still received all of the information in relation to the Agreement. Mr Davies said he had face-to-face discussions with the other three employees when he visited the Lockyer Valley depot on 6 December 2022 and he answered all of their questions in relation to the Agreement. Mr Davies accepted that Grade 1 and Grade 3 calculations were not provided.

Mr Davies said the employees seemed to understand the difficulties and barriers to employing staff on a part time basis when there are only 40 weeks of work a year and therefore the part time provision under the Award was not relevant to them. Mr Davies accepted there were discussions about what would be paid for additional hours and he said it was explained that this can be offered.

TWU submitted in closing that issues still arise about the new School Part Time provisions and as they have not previously featured in earlier agreements and further explanations were required, then were given.

In relation to the literacy and numeracy testing, the TWU submitted it cannot be relied on to determine whether employees understood the Agreement.

Finally, the TWU submitted further, that a comparison should have been given with the Part Time provisions in the Award, and more than two examples of comparisons should have been provided.

The Applicant submitted it had taken all reasonable steps consistent with the decision in One Key, explanations were provided, previous enterprise agreements had been in place, and in any event the employer did provide detailed explanations regarding the changes to the earlier agreement. There was a series of seven bulletins and meetings and ad hoc discussions. The employees were encouraged to ask questions and some 34 people took up the opportunity to talk over the phone and Mr Davies also sat down with employees and explained to employees the changes directly.

The Applicant submitted in relation to the complaint that some employees may not have understood English, these employees are not unskilled, they hold specialised licenses and undertake work with significant Workplace Health and Safety issues to be managed, and have to understand road rules, and regulations, and pass literacy tests. The Applicant said there has been no direct evidence led by the TWU that someone did not understand the explanations given.

I agree with the Applicant that the Agreement in the main rolls over an existing Agreement, with the addition of the new Part Time arrangement a few other less significant changes.

I am satisfied the employer went to some length to explain the new Part Time clause and to provide additional opportunities for any employees who still had questions about how it would operate to have those further explained.

Having considered the evidence, I am satisfied that the Applicant has taken all reasonable steps pursuant to s.180(5) of the Act. The new voluntary Part Time arrangement offered is not directly comparable to the part time provisions in the Award because the nature of the arrangement is intended to provide an option for a casual employee to convert to part time status working for 40 weeks a year and receive remuneration across a full year.

In the circumstances it is unnecessary to consider the issue of whether undertakings can address concerns raised in relation to the second issue as the relevant legislative tests are met.

Issue 3 – Genuine Agreement - Were employees misled

The TWU submitted that undertakings cannot be provided to redress the concern regarding employees who had been misled by the 6 December 2022 Staff Information Bulletin (the Bulletin) that was issued to employees prior to voting. The Union raises concerns that some of the assertions in the Bulletin are untrue and therefore misleading to the extent that it has an impact on the genuineness of the employees’ agreement.

The Applicant submitted in response to paragraphs to 33 to 36 of the TWU Submissions, that it is misleading for the TWU to assert in these proceedings that multi-employer bargaining was never contemplated or endorsed branch-wide by the TWU in circumstances where strike rights in support of multi-employer bargaining claims were endorsed by the TWU publicly and at the national level by Mr Michel Kaine (National Secretary of the TWU) approximately two months prior to the vote on the Agreement on 10 October 2022.

Additionally, the TWU’s own evidence indicates that the TWU is aware that an employee asked a TWU delegate a question about multi-employer bargaining at Park Ridge in early December 2022. The Applicant submits that whilst the TWU’s evidence does not detail what the TWU delegate (Ms Julianne Kingaby) said about multi-employer bargaining, having regard to the evidence of Mr Davies and Ms Saranov, it is submitted there can be little doubt the comments made by Ms Kingaby at that meeting were in the context of multi-employer bargaining.

The Applicant submitted that at no time did the Applicant ever suggest in its communications with its employees that multi-employer bargaining was discussed at the bargaining table or at the branch level by the TWU. Accordingly, the TWU’s allegations in this regard are erroneous.

The Applicant submitted however, that shortly after the vote for the Agreement Mr Jarrod Abbott of the TWU made similar public comments alluding to “other companies…join(ing) industrial action to call for a big change as to how bus drivers get paid.” In the context of the article featuring Mr Kaine, it is submitted the Commission would infer such comments to be references to multi-employer bargaining. These are the types of comments heard by Mr Davies in the lead up to the vote.

The Applicant submitted it is Mr Davies’ view that negotiations under multi-employer bargaining would take a long time (and more than a year) and that this is not an unreasonable belief in circumstances where it took approximately five months for a single employer enterprise agreement to be voted up by employees in the current circumstances, and the current single employer Agreement still has not been approved by the Commission (approximately seven (7) months later). For the above reasons, the Applicant submitted that the TWU’s allegations in this regard ought to be disregarded.

Mr Davies was asked during his oral evidence about comments he had made in reference to the newspaper article where the National Secretary of the TWU is quoted concerning employees being able to strike in support of multi-employer bargaining. It was put to Mr Davies that the article did not talk about what the TWU would do in relation to multi-employer bargaining. Mr Davies said the article indicated the TWU supported the ability to strike in support of multi-employer bargaining at the same time legislation was being dealt with and during bargaining with the Applicant.

Mr Davies said that in the context of what was happening at the time and comments made in depots at the time, that it added weight to comments TWU delegate Ms Kingaby, said at the Park Ridge Depot about wanting to delay negotiations. Mr Davies said in his evidence that he had received five separate reports of a similar message being provided. It was put to Mr Davies he had provided no details of these other separate reports following the 6 December meeting. Mr Davies said the reports he had received were from employees who had attended meetings conducted by the TWU and the message coming out of those meetings.

Mr Davies put out a bulletin in response on the basis that he said it required clarification. The TWU submitted in closing, any links between comments from TWU officials and multiemployer bargaining are tenuous and only one comment from one delegate has been substantiated. The TWU submitted the bulletin did persuade employees to vote a particular way and is a genuine agreement concern.

The evidence on this issue tends to indicate that there had been some discussion emanating from a representative of the TWU about delaying the negotiations in the context of pending legislative changes concerning multi-employer bargaining. Mr Davies also provided evidence that he had received advice from different sources that the issue had been raised at meetings. I am inclined to the view that the comments made by the Applicant in the bulletin in relation to this issue are best characterised as part of the ‘argy bargy’ of the bargaining process, and do not give rise to a concern that the agreement was not genuinely agreed, or that employees were misled into voting for the Agreement.

Issue 4 - BOOT and NES Issues

The TWU submitted that there are a number of remaining BOOT and NES concerns which demonstrate that s.186 of the Act has not been met. The TWU elaborated that these BOOT concerns remain because the rate for some the employee classifications in the Agreement are only marginally above the equivalent Award rates, which are as follows:

a. Cleaner / Yardpersons (Grade 1) – only 1.3% above the Award;
b. SEU Supervisors (Grade 1) – only 1.3% above the Award; and
c. SEU Drivers (Grade 3) – only 1.5% above the Award.

The Union did note in its submissions that some of the concerns raised by both the TWU or the Commission have been resolved by undertakings proposed by the Applicant. These are as follows:

· Clause 4(e) of the Agreement not being an effective NES precedence clause – the concern in paragraph 1 of the TWU’s Form F18 has been resolved by Undertaking 1;

· Clause 27(e) which restricts employees taking annual leave in 5 single day absences has now been resolved by Undertaking 4;

· Clause 29(d) requiring evidence that would satisfy a reasonable person if an employee needs to take family and domestic violence leave has now been resolved by Undertaking 5;

· The footwear or boot allowance in Clause 9(b) to be provided to all employees – the concern in paragraph 2 of the TWU’s Form F18 has been resolved by Undertaking 2;

· That overtime rates should be paid to part-time employees (other than School Part-Timers) for training outside of agreed ordinary hours – this concern has now been resolved by Undertaking 3.

The Applicant noted the TWU Submissions acknowledge many of the issues raised by the Commission in its correspondence of 11 January 2023 have been addressed by the draft undertakings provided by the Applicant on 17 January 2023. Accordingly, the Applicant’s submissions addressed only the outstanding BOOT and NES matters.

In response to paragraph 43 of the TWU Submissions, the Applicant submitted that the rate increases set out by the TWU in this paragraph are inaccurate in respect of the SEU Drivers. The Applicant submitted that SEU Drivers under the Agreement are drivers that would be classified under the Grade 2 classification under the Award.

The Applicant submitted that the evidence of Mr Davies for the Applicant is that the SEU Drivers drive school children to and from school in vehicles with a carrying capacity of less than 22 passengers.

The Grade 2 classification under A.2.1(b) of Schedule A of the Award covers a driver of a passenger vehicle with a carrying capacity of less than 25 school children to and/or from school. Having regard to the above, the rate provided to SEU Drivers under the Agreement is 7.23% higher than the Award. The equivalent rate under the Award is $23.52 for a permanent employee, such employees currently receive $25.22 under the Agreement.

Additionally, school bus drivers drive vehicles with a carrying capacity of 25 or more school children to and from school. In these circumstances, these employees would be classified as Grade 3 employees under the Award. Accordingly, when performing Grade 3 work, Grade 4 Drivers under the Agreement are paid approximately 12.33% higher than under the Award.

The Applicant submitted that the only employees that receive a 1.3% increase above the Award are the Grade 1 employees (though this percentage does not take into account other benefits these employees received including the sign on bonus). There are only eleven employees (two SEU Supervisors and nine Cleaners) out of a total of 360 employees covered by the Agreement that fit within this classification.

The Applicant submitted that for the above reasons, 349 out of 360 employees covered by the Agreement are more than 7% better off under the wage rates alone under the Agreement - and are not just “marginally” better off as contended by the TWU.

The evidence and submissions support the conclusion that the vast bulk of the workforce will be paid above the award by the greater percentage amount described by the Applicant, and will not be only marginally above the Award as submitted by the TWU. The evidence and submissions indicates only the small number of employees will be marginally above the Award, and they will receive other benefits including the sign on bonus, and are unlikely to engage in working arrangements that raise a concern that they may not be better off overall under the Agreement.

Part-time overtime – other than School Part-Timers

The TWU noted the Commission’s concern identified in the 11 January 2023 email correspondence that:

“Part-time overtime: Schedule 1 (Part Time Employees) provides that the employer and employee must agree on the minimum and maximum hours to be worked by the employee. Award clause 10.3 requires agreement on hours, days, and expected start/finish times. This may affect overtime entitlements for part-time employees as Schedule 1 provides overtime to part-time employees in excess of the maximum agreed hours and Award clause 10.9 provides overtime for time worked outside agreed hours.”

As outlined in its 19 January 2023 submissions, the TWU submitted that Undertaking 6 provided by the Applicant on 17 January 2023 should be amended to directly address the Commission’s particular concern that “the Employer undertakes to come to an agreement with an employee under this part in relation to potential rosters they are able to work, including expected start / finish times […]”. The Respondent submitted that such matters will need to be clarified as per the Award so that the trigger for when overtime rates are to be paid are clear and consistent for each employee.

The Applicant submitted in response to paragraphs 44 to 46 of the TWU Submissions, on 11 January 2023 the Commission raised the following issue in relation to part-time overtime for employees other than School Part-Timers:

“Part-time overtime: Schedule 1 (Part Time Employees) provides that the employer and employee must agree on the minimum and maximum hours to be worked by the employee. Award clause 10.3 requires agreement on hours, days, and expected start/finish times. This may affect overtime entitlements for part-time employees as Schedule 1 provides overtime to part-time employees in excess of the maximum agreed hours and Award clause 10.9 provides overtime for time worked outside agreed hours.”

The Applicant provided the following undertaking in its 17 January 2023 response:

“In relation to Schedule 1 - Part-time Employees Other than School Part Timers - the Employer undertakes to come to an agreement with an employee under this part in relation to potential rosters they are able to work. Where a part-time employee is required to work outside of the agreed potential rosters, such work will be paid at overtime rates.”

The Applicant submits the only employees within Bus Queensland who could work on a Non School Part-Timer basis are urban bus drivers. These types of drivers do not start work and finish work at the same time each day but would work on a rotational roster which would include a range of different shifts with varied starting and finishing times.

The Applicant submitted that Bus Queensland currently does not employ any employees that fall within this category on a part-time basis.

Further however, noting that urban driver shifts will fluctuate, Bus Queensland would not be able to offer any employee part-time employment under the Part-Time Employee (Other than School Part-Timers) provision if a set shift starting and finishing time had to be agreed upon prior to commencement of employment.

The Applicant submitted that the Agreement as currently drafted already provides that the lines in the roster group will be agreed prior to an employee commencing part-time employment in this part. The lines in the roster group already include the various starting and finishing times for the shifts in the roster.

The Applicant submitted that the TWU says that the Applicant’s undertaking should be amended to refer to expected start/finish times as referred to in clause 10.3 of the Award. However, the TWU’s submissions also note that the BOOT test does not require a line-by-line comparison of individual terms as was indicated by the Full Bench in Armacell Australia Pty Ltd and Others [2010] FWAFB 9985 (Armacell).

The Applicant submitted the BOOT test does not require the Applicant to mirror the wording of the Award in its benefits and entitlements in accordance with the decision in Armacell.

The Applicant submitted it has provided an undertaking that potential rosters will be agreed upon by employees, and that where an employee is required to work outside of the agreed potential rosters, the employee would be paid overtime. Nonetheless, the Applicant submitted they are prepared to amend the undertaking in relation to Non-School Part-Timers to make it clear that:

(1) any potential agreed rosters that an employee will be required to work will include a range of starting and finishing times that the employee may be required to work: and

(2) where an employee is required to work outside of the agreed potential rosters, such work will be paid at overtime rates.

Part-time overtime for School Part-Timers

With respect to the same issue above, but as it applies to School Part-Timers whom would only receive 20% loading for working in excess of their average weekly hours, the TWU refers to its submissions of 19 January 2023 in response to the calculations provided by the Applicant on 17 January 2023 which provides:

"a. Grade 4 Drivers who work minimum 20 hours can work up to an additional 18 hours and still be better off under the Agreement; and

b. Grade 1 and 3 School Part-Timers will still be better off overall when working up to 7 or 8 additional hours under the Agreement respectively.”

The TWU reiterated in its submissions that the calculations for the amounts paid under the Award in comparison to the Agreement will depend on how the additional hours are patterned, particularly whether or not they attract the 150% overtime penalty for the first 3 hours, followed by the 200% penalty thereafter.

The TWU submitted that the example calculations on the first page for the Grade 4 classification in the Agreement is unclear regarding which multipliers were used to arrive at the $733.02 figure for those 18 weekday additional hours. Further, in the example calculations on the second and third page for the Grade 1 and 3 classifications, the amounts under the Award may be higher than the Agreement if those 7 or 8 additional hours are worked in a way that attracts the 200% overtime penalty after 3 hours.

The TWU further submitted that calculations for all three classifications pertaining to the total annual leave hours accrued in a year, it appears that the Applicant has not multiplied the annual leave hours accrued in a week by 40 weeks (being the number of school weeks that School Part-Timers would work) for the Agreement calculations. According to the TWU’s revised calculations:

“a. For the Grade 3 classification calculations on the premise they are working 28 hours per week: under the Agreement, their total annual leave hours in a year would be 28 hours x 40 weeks x 0.0909 hours accrued = 102 hours, not 115 hours;

i. The TWU calculates that their total annual leave payment is therefore $2572.44;

ii. The annual leave loading is therefore $450.18;

iii. The gross weekly earnings / fixed weekly school payment should also be ((20 hours x $25.22) + (8 hours x $25.22 x 120%)) x 40 weeks / 48 weeks = $622.09, plus the $20 Safe School Allowance = $642.09

iv. The gross earnings per year is therefore $642.09 x 48 weeks = $30,820.32;

v. The total annual earnings under the Agreement is therefore $33,842.94;

vi. This is less than the Award figure of $36,185.20 (which appear to be calculated);

b. For the Grade 1 classification calculations on the premise they are working 27 hours per week: under the Agreement, their total annual leave hours in a year would be 27 hours x 40 weeks x 0.0909 = 98 hours, not 111 hours;

i. The TWU calculates that their total annual leave payment is therefore $2285.44;

ii. The annual leave loading is therefore $399.95;

iii. The gross weekly earnings / fixed weekly school payment should also be ((20 hours x $23.28) + (7 hours x $23.28 x 120%)) x 40 weeks / 48 weeks = $550.96, plus the $20 Safe School Allowance = $570.96;

iv. The gross earnings per year is therefore $570.96 x 48 weeks = $27,406.08;

v. The total annual earnings under the Agreement is therefore $30,091.47;

vi. This is less than the Award figure of $31,968.22.”

The TWU noted these specific concerns are linked to their general concerns set out in its 17 January 2023 submissions with how the fixed school payments will be calculated, which in turn are based on calculations of an employee’s allocated school run hours for a week, multiplied by 40 school weeks and divided by 48 weeks. Though the Applicant has provided an example of 25 allocated school run hours for a week in Schedule 1 section (d) of the Agreement to calculate that this would yield 20.83 average hours, the TWU submitted that the hours for casual drivers can fluctuate each week, particularly for those that perform a combination of urban routes and school runs. Furthermore, the average weekly hours can be determined (and therefore varied) at any time by consent between the parties under section (b) and it appears that under section (p) that reconciliations between the hours worked and paid to an employee (in a six month period) are only conducted when a school part-timer’s employment terminates.

It is the TWU’s view that the calculations of fixed school payments being equivalent to at least what part-time employees will be paid for agreed upon and reasonably predictable hours of work under Clause 10 of the Award will depend on the allocated school run for hours being consistent each week, otherwise overtime rates should be paid for hours worked outside of agreed upon hours.

The TWU submitted that the current arrangements under the Agreement, affords less certainty and consistency to a School Part-Timer in terms of the hours they will be worked and paid each week than the arrangements provided for under Clause 10 of the Award, particularly in conjunction with the obligations in Clause 16.1 and 16.3 of the Award that all earnings, including overtime, must be paid weekly (or fortnightly, however it is noted in Clause 11(a) of the Agreement that wages will be paid weekly) and within 2 days of the expiration of the pay period in which they accrue.

The TWU submitted that they cannot envisage an undertaking that could redress the number of concerns that arise out of the School Part-Timer provisions, apart from an undertaking that the whole of the provisions will not be relied upon. If so, such an undertaking together with the others which the TWU say are required, may result in a substantial change to the Agreement within the meaning of section 190(3)(b) of the Act.

The Applicant submitted in response to paragraphs 44 to 55 of the TWU Submissions, the calculations which were submitted to the Commission on 17 January 2023 were calculated using the following methodology:

(1) In relation to the Grade 4 classification, the calculation of $733.02 for 18 additional hours under the Award was calculated on the basis that an employee could work up to three (3) hours of overtime each day for five (5) days at the rate of time and a half (150%), and that any additional overtime after that would be paid at double time (200%);

(2) In relation to the Grade 1 and 3 classifications, the additional 7 hours covered in the calculation are calculated at the time and a half rate;

The Applicant submitted in response to paragraph 50 of the TWU Submissions, the TWU’s calculation of annual leave is incorrect. It does not account for the fact that annual leave continues to accrue whilst an employee is on annual leave. The correct calculation for annual leave in relation to the Grade 3 employee is (20 hours x 40 weeks) + (8 hours x 48 weeks) + (20 hours annual leave x 4 weeks) x 0.0909 = 114.8976.

The Applicant submitted the correct calculation for annual leave for the Grade 1 employee is: (20 hours x 40 weeks) + (7 hours x 48 weeks) +(20 hours x 4 weeks annual leave) x 0.0909 = 110.53 hours.

The Applicant submitted that it has reviewed the calculations that it provided to the Commission on 17 January 2023 and confirms the calculations in relation to the Agreement were correct. There were however errors in calculating the Award rates. The calculations the Applicant provided on 17 January 2023 in relation to the Award were calculated to be higher than was correct. As such, the benefit to employees is actually greater than what was provided in the original calculations. The Applicant provided an updated excel spreadsheet explaining the error attached to its submissions.

The Applicant provided calculations which show a Grade 4 Driver will still be better off noting they can work up to 38 hours per week (where additional hours over 20 are paid at 120%) and still be better off under the Agreement noting that clause g) of Schedule 1 of the Agreement in relation to School Part-Timers provides that overtime rates will be payable for any hours worked in a week in excess of 38 hours, and for any hours worked in a day in excess of 10 hours.

The Applicant submitted that additionally, the effect of the 7th undertaking provided by the Applicant is the Applicant will ensure overtime rates are paid to a School Part-Timer (other

than a Grade 4 Driver) where more than 7 additional hours are worked in a week. Having regard to the Applicant’s calculations, employees other than Grade 4 Drivers can work up to 7 or 8 additional hours in a week and still be better off overall under the Agreement.

The Applicant submitted in response to paragraph 52 of the TWU Submissions, that any additional hours worked above the agreed average weekly hours are paid each week. The reconciliation referred to in paragraph p) of the School Part-Timers provision in Schedule 1 of the Agreement is intended to cover the situation where a School Part-Timer’s employment ends before the school holiday period. In this case, the employee would not have had an opportunity to receive the Fixed School Payment during the holiday period and accordingly a reconciliation will be undertaken to ensure the employee is not underpaid.

The Applicant submitted in response to paragraph 53, the School Part-Timer provision is not analogous to the ordinary part-time employee provision under clause 10 of the Award, noting that School Part-Timers will continue to be paid at their fixed rate even during school holidays periods when there is no work. In contrast, a part-time employee under clause 10 of the Award works less than 38 hours per week (the Applicant submits zero hours in a week was not contemplated when clause 10 of the Award was drafted), and works reasonably predictable hours.

The Applicant submitted that the School Part-Timer provision was designed by the Applicant to overcome issues in relation to uncertainty of hours and pay for casual school drivers. The Applicant has never previously employed a part-time school bus driver noting that given there is no work during the school holiday period, the Applicant could never previously engage a school bus driver on a part-time basis under clause 10 of the Award. Further without the School Part-Timer provision of the Agreement, the Applicant would have reasonable grounds to refuse a request by a school bus driver for casual conversion under section 66H of the Act based solely on the lack of work available during the school holiday Period.

The Applicant noted that the Commission recently approved a school parttime provision in the Sunshine Coast Sunbus Enterprise Agreement 2020 which was less beneficial than the Applicant’s School Part-Timer provision noting that the Sunbus provision required employees to take leave without pay during school holiday periods and does not pay a penalty for additional hours over the agreed hours.

The Applicant submitted that in all of the circumstances, the School Part-Timer provision is overwhelmingly beneficial and casual school bus drivers employees (should they wish to convert to part-time, noting there is no obligation for them to do so) will be better off under these provisions than if they remained employed on a casual basis due to the:

certainty in hours and pay provided under this provision (and the ability to still earn an income during school holiday periods);
ability to accrue annual leave when working Additional Hours;
ability to accrue annual leave at a higher rate of pay (0.0909 which equates to roughly more than 4.5 weeks of annual leave per year);
ability to earn a penalty rate when working Additional Hours;
the provision of the Safe School Allowance of $20 per week for School Part-Timers; and
reliability incentive of $400 per year for an employee to takes less than 20 hours of personal leave in a year.

Comparing the School Part timer role to the Part time entitlements under the Award is not comparing ‘apples with apples’ given the clause in the Agreement pays wages for 52 weeks including annual leave when 40 weeks is to be worked. Having considered the material before the Commission, I am satisfied where casual employees elect to convert to the part time role they will be better off under the Agreement than the Award.

Deductions if employee does not give required notice of termination

The TWU submitted that they still have concerns, as raised in paragraph 6 of their Form F18, that under Clause 33(b) of the Agreement, not only can two weeks’ wages be deducted from an employee’s final pay (whereas Clause 30.1(d) of the Award only allows for one week’s wages being deducted), the deduction can also occur from an employee’s NES entitlements.

The TWU noted that the deduction being potentially taken from NES entitlements was also a concern shared by the Commission. As stated in its response submissions of 19 January 2023, the TWU submitted that an undertaking is necessary to meet the requirement in section 186(2)(c) of the Act, in the event that an employee does authorise the deduction to occur.

Regarding the Applicant’s assertion in its 17 January 2023 submissions that such an undertaking “would go beyond what the Employer is lawfully permitted to do under section 324 of the Act”, the TWU disputes this noting that section 324(1)(b) provides that a deduction can be made if it is authorised by an employee in accordance with an enterprise agreement. The TWU also noted that such an undertaking is frequently requested by the Commission and provided by Employer Applicants in approval applications.

With respect to the amount of the deduction itself, the TWU submitted that the specific provision in Clause 33(b) that deductions can only occur with employee authorisation is a non-monetary benefit that does not necessarily supplant (given that rates for certain employees are only marginally above the Award) the monetary component of the benefit afforded by the Award.

The Applicant submits that Clause 30.1(d) of the Award provides that:

“If an employee who is at least 18 years old does not give the period of notice required under clause 30.1(b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.”

The Applicant submitted therefore, the Employer is permitted under the Award to deduct no more than one week’s wages from the employee’s final pay where the employee has not provided sufficient notice and without any further consent or authorisation required from an employee. Clause 33(b) the Agreement provides that:

“… if the employee does not provide the required amount of notice to the Company, the Company may deduct the value of the period of notice given from the employee’s final pay. Such deduction must only be made on receipt of a signed authorisation from the employee or a Court order.

The Applicant submitted that under the Agreement where the employee refuses to provide the authorisation, no amount at all can be deducted by the Employer. This places the employee in a better position than they would be under the Award, as no deduction can occur under the Agreement without the employee’s signed authorisation. Nonetheless the Applicant is prepared to provide an undertaking to the effect that any deduction under clause 33(b) of the Agreement will be made from an employee’s wages and not their accrued NES entitlements.

I am satisfied that the further undertaking offered will resolve the concern raised.

Waiting time on charters

The TWU refers to the concern raised by the Commission in its 11 January 2023 email correspondence with respect to Clause 14(d) of the Agreement only providing that waiting time on charter would be paid at ordinary rates, whereas Clause 13.3(b) of the Agreement provides that waiting time would be paid at 50% plus any applicable penalty, which may result in payment greater than ordinary rates on Sundays and public holidays.

In response to the Applicant’s assertion that Clause 14(d) is more beneficial because it does not provide a reduced rate and that the Sunday and public holiday penalties in the Agreement are equivalent to the Award, the TWU submit that it does not meet the concern if employees are only being paid ordinary rates for waiting time and the penalty rates do not apply. As such, the TWU reiterated its submission in its 19 January 2023 response that an undertaking should be provided to clarify that waiting time should be paid at the relevant hourly rate (including any applicable penalty) to ensure that employees would not be paid lower than the Award.

The Applicant submitted that Clause 14(d) of the Agreement provides that:

“Clause 13.3 of the Passenger Vehicle Transportation Award 2020 (Waiting Time) is not incorporated into this Agreement. Time spent waiting is paid at the relevant hourly rate specified.”

Clause 13.3 of the Award provides that:

“(a) An employee engaged as a coach driver or a bus driver on a single day charter may have a rostered shift divided into 2 working periods with no requirement to return to the depot during a rostered shift.
(b) The coach/bus driver will be paid waiting time at the rate of 50% of the minimum hourly rate plus any applicable penalty or loading.”

The Applicant submitted that Clause 14(d) of the Agreement is more beneficial than clause 13.3 under the Award, as the employee does not receive a reduced rate during waiting time, and the Sunday and Public Holiday penalties under the Agreement are otherwise equivalent to the penalties under the Award and would apply where an employee spends time waiting on a Sunday or Public Holiday (as those rates would be the relevant rates specified).

Having considered the submissions it does not appear that this provision of the Agreement is likely to lead to any significant detriment to employees as compared to the Award.

24 hours’ notice to be given for cancellation of charters

In paragraph 3 of its Form F18, the TWU raised the issue of Clause 14(b) of the Agreement providing that where a charter is cancelled, and the employee is not given at least one hour’s notice, they will be paid two hours at ordinary rates. In contrast, Clause 13.2(b) of the Award provides that changes to rosters to be posted 24 hours’ in advance and the employee to be notified. The Union note that the Commission also outlined this as a concern in its 11 January 2023 email correspondence.

Regarding the Applicant’s assertion in its 17 January 2023 submissions that charter work is not ‘known rostered duty’ within the meaning of Clause 13.2 of the Award because it is only offered to casual employees or as overtime to permanent employees, the TWU disputed this submitting that there is nothing in the Agreement, for example, which would prevent the Applicant from changing a permanent employee’s roster to take them off a route and undertake charter work instead due to operational needs, which would still be within their rostered ordinary hours. As such, the TWU submitted that an undertaking is still required to ensure that at least 24 hours’ notice is provided.

The Applicant submitted an equivalent provision to clause 14(b) of the Agreement has been in predecessor enterprise agreements that applied to the Applicant and its employees from at least 2013. The Applicant submits that it currently engages in minimal charter work and would only engage in charter work on an ad-hoc basis.

The Applicant submitted that charter work would only be offered to employees on an ad-hoc basis at the time that it becomes available and therefore such work would only be offered to casual employees and employees who choose to take on such work as overtime (outside of any roster). Accordingly, charter work is not known rostered duty such that clause 13.2 of the Award would apply.

Nonetheless, the Applicant is prepared to give an undertaking to the effect that if a permanent employee is rostered for charter work, any change to the roster will be displayed 24 hours in advance and the employee will be notified.

I am satisfied that this further undertaking offered will resolve any BOOT concerns arising from this issue.

Payment for minimum engagement and shift provisions if charter cancelled

In response to the Commission’s invitation in its 11 January 2023 email to provide further particulars as to these concerns, the TWU outlined in its response of 17 January 2023 that Clause 14(b) of the Agreement also appeared to be less beneficial than:

“a. Clause 9.1(b) of the Award: full-time employees must receive a minim payment of 4 hours for each shift/day engaged;
b. Clause 10.8 of the Award: part-time employees must receive a minimum payment of 3 hours for each day they are engaged; and
c. Clause 11.3(a) of the Award: casual employees must receive a minimum payment of 3 hours, unless they are engaged solely for school transportation where they must receive a minimum payment of 2 hours for each engagement (and there can be 2 separate engagements per day).”

The TWU submitted that it is not only casual employees who are engaged for charter work, and with respect to full-time and part-time employees where charters are cancelled without the requisite notice this is linked to the BOOT issue that 24 hours’ notice is required for a change to roster under Clause 13.2(b) of Award.

With respect to casual employees, it is noted in Clause 11.1 of the Award that an employer must, wherever practicable, notify a casual employee if their services are not required the next working day. The TWU submitted that the entitlement to minimum payments under the Award are not dependent on the moment that employees physically arrive at the workplace (which the Commission identified as an issue that made it unclear if the minimum payments were to apply in the event a charter is cancelled), but are triggered by virtue of being rostered for a shift or day for which an employee has set aside and made arrangements to attend work, and which has not been cancelled with the required notice. The TWU notes that it cannot identify any legal authority to suggest that charters would not be a shift or an engagement within the meaning of the Award provisions outlined above.

The TWU submitted that an undertaking is still required to ensure that these minimum payments will be paid in the event that a charter is cancelled without the requisite notice.

The Applicant submitted the minimum shift provisions under clauses 9.1(b), 10.8, and 11.3(a) of the Award will not apply where a charter is cancelled. The Applicant says these clauses do no more than provide the minimum hours an employee should be given on a shift/day engaged. Importantly, there is nothing in the natural and ordinary meaning of the words used in these provisions (having regard to the decisions of City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813, Kucks v CSR Limited [1996] IRCA 166, and Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477) which indicate that these minimum hours must be paid to an employee in circumstances where a shift is cancelled.

The Applicant submitted that similarly, clause 11.1 of the Award does not provide any obligation to pay casual employees any particular amount where an employer is not able to provide notification that a casual employee’s services are not required the next working day. Further, it is noted that the Award adopts the definition of casual employee under section 15A of the Act which makes it clear that the nature of casual employment is one where an employer can elect to offer work, and a casual employee works according to the needs of the employer. Accordingly, a requirement to pay a casual employee when work is no longer available would not be in keeping with the industrial context and inherent nature of casual employment.

The Applicant submitted that additionally, charter work is not “known rostered duty” such that clause 13.2 of the Award would apply.

The Applicant submitted that having regard to all of the above, no payment is required to be made to an employee if a charter is cancelled and the undertaking referred to above otherwise addresses this matter.

I am satisfied that the cancellation of a charter as far as it affects a casual employee prior to the commencement of shift does not attract a payment under the Award. In relation to permanent employees the undertaking referred to above addresses the concern.

Unpaid time spent rectifying appearances

In its 17 January 2023 submissions, the TWU provided further submissions regarding the issues it outlined in its Form F18 at paragraph 4, being that Clause 15(f) of the Agreement which provides that time taken to remedy appearances, if required, before commencing work will be unpaid if an employee has presented for work out of uniform or in an untidy appearance.

The TWU submitted that although there is no specific provision directly addressing this issue in the Award, if an employee has attended the workplace and received a lawful and reasonable direction to remedy their appearance (particularly if it is within the start-up time at the beginning of their shift as outlined in paragraph 7(e) of the Agreement), then such time should be paid time. The TWU asserts that this aligns with the general obligation to pay employees minimum rates for ordinary hours worked by the employee in Clause 15.1 of the Award. TWU therefore submitted that an undertaking is still required to ensure that this will be paid time.

The Applicant noted that clause 15(f) of the Agreement provides:

“Employees who present for work out of uniform or in an untidy appearance may be required to remedy before commencing work. Time taken to remedy the problem will be unpaid.”

The Applicant submitted those activities an employee undertakes to remedy their appearance or put on a uniform prior to commencing work, so the employee is ready for work, are private activities. In these circumstances, such activities would not be regarded as “work” and accordingly such activities are not paid. In this regard, the Applicant relies on the recent decision of Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799 (Aldi Foods) at paragraphs [34 to 39] in which Judge Humphreys distinguished activities such as storing personal effects, putting on uniforms or PPE which are of benefit to the employee, from pre-commencement activities which should be regarded as “work” and are of benefit to the employer.

The Applicant therefore submits that the private activities described in clause 15(f) of the Agreement would not attract minimum rates for ordinary hours worked by an employee under clause 15.1 of the Award, are not otherwise dealt with by the Award and accordingly do not need to be paid under the Agreement for the Agreement to pass the better off overall test (the BOOT).

I am not satisfied that this issue gives rise to a concern that the Agreement may not meet the BOOT.

Wage increases

In reference to the TWU’s 17 January 2023 submissions, where further submissions were provided with respect to the matters raised in paragraphs 8 and 9 of its Form F18, being the Agreement wage rates for Cleaner/Yardpersons and SEU Supervisors sitting above the Award at 1.3% and wage rates for SEU Drivers sitting above the Award at 1.5%, the TWU is of the view that these employees are not better off overall under the Agreement when taking into consideration the other BOOT concerns raised, the marginal amounts the wage rates are above the Award and the increase by Wage Price Index (WPI) every July under Clause 10(c) (which may fall below the annual Award increases determined by the Commission every July).

The TWU makes reference to paragraph 27 of the Full Bench decision in Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd (t/as Opal Aged Care)[2019] FWCFB 1716 which provided the following:

“Section 193 provides than an enterprise agreement passes the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee and each prospective award covered employee would be better off overall if the agreement applied to the employee than if the relevant award applied to the employee. Although the test time is the date the application was lodged, the Commission is required to conduct an overall comparison, for each existing and prospective employee, of agreement and award conditions. This necessarily requires a consideration of the rates of pay under the agreement and the award that apply to existing and prospective award covered employees assessed “as at the test time”. A “point-in-time test” is necessary because the award benchmark may change over the nominal life of the agreement, although its base rate of pay would always be the relevant minimum because of s 206. To our mind, this is the anchoring work of the “test-time”. The BOOT analysis occurs at this time, taking account of all that is known at this time, including all of the terms of the agreement that will apply over its nominal life. In our view, the “test-time” does not confine the BOOT analysis to provisions of an agreement that are applicable only at its inception; employees must be better off overall under the agreement, not just better off at “test-time”.”

The TWU therefore submits that the following matters known at test time ought to be taken into account for the purposes of the BOOT:

“a. That wage rates for certain employees sit only marginally above the Award, as identified by both the TWU and the Commission;

b. The wage rates will only increase by WPI, which may fall below the annual Award increases determined by the Commission every July under Clause 10(b) of the Agreement;

c. In its last Annual Wage Review 2021 – 2022, the Commission decided to increase modern Award minimum wages by 4.6%, subject to a minimum increase for adult award classifications of $40.00 per week;

d. The latest WPI data released by the Australian Bureau of Statistics in September 2022 provided a figure of 3.1% increase over the year, with the next WPI figures to be released on 22 February 2023;
e. There is therefore a reasonably foreseeable risk that the employees whose rates are only marginally above the Award rates will be ultimately paid less than the Award over the nominal life of the Agreement.”

Undertakings to address BOOT and other concerns

While the TWU has sought to identify, out of convenience, the BOOT and other concerns that could be remedied by undertakings if the Commission was minded to approve the Agreement, the TWU submitted that given the number of undertakings which it posits are still required and the significant nature of some of the deficiencies that would need to be redressed by those undertakings, it is likely that the undertakings needed would result in substantial changes to the Agreement within the meaning of section 190(3)(b) and therefore cannot be accepted by the Commission.

The Applicant submitted that the TWU have referred to paragraph 27 of Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd (t/as Opal Aged Care) [2019] FWCFB 1716 (Opal Aged Care). However, this paragraph states:

“The BOOT analysis occurs at this time, taking account of all that is known at this time, including all of the terms of the agreement that will apply over its nominal.”

Moreover, paragraph 28 of Opal Aged Care states that:

“In the context of the present matter, it was known to the Commissioner that the rate of pay under the Award at the time she made her decision in December 2018 was $20.63.”

The Applicant submitted that whilst the Full Bench had regard to increased award rates that were known at the time of the Commissioner’s decision and after the test time, the decision in Opal Aged Care is not analogous to this matter noting that:

(1) the agreement in Opal Aged Care did not pass the BOOT at test time or at the time of the Commissioner’s decision (accordingly, it is not clear how much weight was given to the assessment at the time of the Commissioner’s decision); and

(2) any future Award wage rate increases have not been released and are therefore not known.

The TWU submitted there is a reasonable foreseeable risk the employees will be ultimately paid less than the Award having regard to potential future wage rate increases. The Employer disputes that such a risk is foreseeable – but more importantly this is not the relevant test under section 193 of the Act or in the Opal Aged Care decision.

The Applicant submitted that whilst the Commission can have regard to future Agreement rates that will apply during the nominal life of the Agreement, future Award increases are not known since there has been no further increase to Award wage rates released at test time or even at the present time. Accordingly, speculation about future Award increases cannot be taken into in account in determining whether the Agreement passes the BOOT at test time.

In any event pursuant to clause 10(b) of the Agreement, the Applicant is required to ensure no employee be paid an amount less than the applicable amount payable under the Award. Therefore, upon each wage rate increase anniversary date the rates will increase by either the WPI or be increased to meet the Award rate, whichever is greater. Clause 10(b) of the Agreement ensures that the base rates will never fall below the Award rates.

Having regard to all of the above, the Applicant submitted the Agreement should be approved with the signed undertakings the Applicant attached to its submissions.

Mr Davies was asked about his evidence concerning SEU Drivers. He said under the Award they would be grade 2. It was put to him that the Form F17 filed with the Commission indicated that these employees would be Grade 3. He agreed with that. Mr Davies said that the Form F17 said Grade 3 but they are Grade 2 under the Award. Mr Davies agreed an earlier Form F17 filed for an earlier agreement also identified SEU Drivers as Grade 3. Mr Davies agreed that the distinction was whether the passenger vehicle had a carrying capacity of less than 25 or more than 25. Mr Davies agreed that there are SEU drivers who drive a vehicle with a carrying capacity of more than 25 who would be Grade 3.

Mr Davies agreed that $24.84 is the current SEU rate in the Modern Award for Grade 3, and $25.22 was the Agreement rate, making only about a 40 cent difference per hour, and for casuals $31.05 under Award and $31.52 under the Agreement.

Mr Davies was also asked about the Permanent Grade 1 rates as being $22.98 under the Award and $23.28 under the Agreement and he accepted that.

It was put to Mr Davies that it would be a concern to employees at Grade one, two or three, that they would not receive the overtime rate that would be paid under the Award. Mr Davies answered no because the amount of additional work that a grade one two or three could do would be limited. Mr Davies said the amount of additional work is limited, a grade one does not drive, and a two or three could only do limited time. They would also receive the additional benefits of annual leave and sick leave hours and superannuation contributions. Mr Davies said grade 3 SEU drivers were limited to additional driving of the same hours they would do on another school run, and if they were doing additional work, they would be doing urban services and be paid the Grade 4 rates.

For Grade 4 drivers it was agreed $28.81 is the rate under the Agreement, and under the Award $25.72 and the difference was $3.17. It was put to Mr Davies with rates approximately 12% over the Award, only receiving 120% for overtime is not sufficient. Mr Davies said if the drivers are only doing additional hours as part of their school run the comparator is Grade 3 under the Award which is $24.84, and therefore the Agreement is approximately 18% above the Award. Mr Davies repeated that the additional accruals for annual leave and superannuation are also more beneficial that needs to be taken into account.

I have concluded that the Opal Aged Care case does not support the TWU objection in relation to satisfaction of the BOOT concerning the quantum of future national wage case decisions as they are unknown. I am also not satisfied that if I were to accept the undertakings offered by the Applicant, that would result in substantial changes to the Agreement within the meaning of section 190(3)(b). I have already dealt with the submission that employees will be only marginally better off and have concluded that percentage differences are overwhelmingly greater than as put for the TWU, and in the case for level one employees, there are other factors that support the conclusion that they will be better off overall in any event.

Conclusion

The Applicant has provided written undertakings signed and dated 28 February 2023. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The TWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the TWU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

[1] Exhibit 1

[2] Exhibit 2

[3] Exhibit 3

[4] Exhibit 4

[5] Exhibit 5

Printed by authority of the Commonwealth Government Printer

[2023] FWCA 997

4 APRIL 2023