This was an Appeal by the TWU against the decision [2014] FWCA 3338 of Deputy President Sams involving the approval of an EBA.

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

The Union’s argument being that the EBA did not pass the Better Off Overall Test (BOOT) and was therefore not in the public interest with the main abjection being the “split shifts”. The appeal was not granted, but the Full Bench affirmed the original find that the following matters can be “off-set” as being in favour of the employees.

The Deputy President made the following findings in relation to the BOOT:

“There is no doubt that the Commission may take into account non-monetary benefits under an enterprise agreement when assessing whether the BOOT is satisfied (supra above). In this case, I accept that non-monetary benefits include the following:

(a) A Bus Driver commences his/her shift from home. As the Union conceded, this is an unusual feature within the bus transport industry. For most other operators, a driver’s travelling time, to and from the depot, is in their own time. Under this Agreement, Bus Drivers have the convenience of starting and finishing their shifts from home. While I accept the advantage will vary according to distances from home and the first pick-up and last drop off, on any view, this arrangement is a significant benefit.

(b) The bus may be used, with permission, for personal purposes. While I was provided with no evidence as to the extent of takeup of this concession, there is no doubt that this is a benefit; albeit a relatively modest one.

(c) For those employees (25) whose primary employment is with Education Queensland, having the use of the bus to drive to and from their job at the school where they take the children is a further non-monetary benefit.

(d) Split shifts vary from 50 minutes to 4 hours. As most of the Drivers are not required to work the minimum engagements of 2 x 2 hour engagements a day, they are free to return home without working the balance of the engagements.

(e) All drivers are provided with a mobile phone, which they can keep if replaced.

As to monetary benefits, it is clear, as the Union accepted, that the rates under the Agreement are higher than under the Awards. The differential for Bus Drivers is 4.3% and for Bus Supervisors is 0.5%. I note that the pay rates are to be annually adjusted in accordance with the Commission’s Minimum Wage Review Decision.”

Commentary:  This is obviously a case where the union was not supported by the workers, given that to get to the stage of union intervention; the EBA had followed due process and would have been voted in.  And to do so, meant that the employer had positive relations with its workforce.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:


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