1
Fair Work Act 2009
s.604 - Appeal of decisions
Transport Workers' Union of Australia
v
Jarman Ace Pty Ltd T/A Ace Buses
(C2014/4889)
VICE PRESIDENT CATANZARITI
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
COMMISSIONER CAMBRIDGE SYDNEY, 28 OCTOBER 2014
Appeal against decision [2014] FWCA 3338 of Deputy President Sams at Sydney on 23 May
2014 in matter number AG2014/5151.
[1] This is an appeal by the Transport Workers’ Union of Australia (the TWU) against a
decision1 (Decision) of Deputy President Sams in which the Deputy President approved an
enterprise agreement known as the Ace Buses Enterprise Agreement 2014 (the Agreement).
[2] At the hearing of this appeal on 22 August 2014, the TWU sought permission to be
represented by A Howell of Counsel. Jarman Ace Pty Ltd T/A Ace Buses (the Respondent)
sought permission to be represented by A J Coulthard of Counsel. Permission was granted to
both parties on the basis that we were satisfied that the subject matter of the appeal was
sufficiently complex that allowing legal representation would enable the matter to be dealt
with more efficiently.
Background
[3] The Agreement covers 69 casual employees engaged as bus drivers, bus supervisors or
administration staff. The bus drivers transport physically and intellectually disabled school
aged children between their homes and their schools. A bus supervisor is required to
accompany each bus driver on every trip.
[4] The TWU opposed the application for approval of the Agreement at first instance on
the basis that it did not satisfy the ‘better off overall test’ (the BOOT) for the purposes of
s.193(1) of the Fair Work Act 2009 (the Act). It was accepted by both parties that the
Passenger Vehicle Transportation Award 2010 [MA000063] (the Award) was a relevant
reference instrument for the purposes of determining the BOOT.
[5] The nature of the work performed by the Respondent requires employees to perform
split shifts; one shift in the morning to drive the children to school and one shift in the
afternoon to drive the children home. The primary contention between the parties related to
the issue of minimum engagement periods. Under the Agreement, it is the sum of the parts of
[2014] FWCFB 7097
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 7097
2
a split shift that are utilised when calculating a minimum engagement period. For example, an
employee who performs a split shift made up of two 25 minute parts is considered to have
worked for a total of 50 minutes, and under the Agreement that employee would be entitled to
two hours’ pay for the day. The TWU argued that under the Award, on its proper
interpretation, employees in the same position would be considered to have been engaged
twice, and would therefore be entitled to payment for two separate minimum engagements.
[6] The relevant parts of the Agreement are set out below:
“12.3 Casual:
...
(d) Given the nature of the work the Bus Drivers and Bus Supervisors perform, they
work a split shift which comprises of two parts:
(i) First part is worked between 7:00am to 9:00am when they collect the
passengers from their places of residence and transport them to their school;
and
(ii) Second part is worked between 2:00pm to 4:30pm when they collect the
passengers from their school and transport them to their place of residence.
(e) Bus Drivers and Bus Supervisors are required to work both parts of the split shift
set out in clause 12.3(d). If a Bus Driver or Bus Supervisor is not available to work
both the morning and afternoon parts of the split shift, they will not be able to work
the shift for that day and a relief Bus Driver or Bus Supervisor will be used to work
the entire split shift for that day. The Company has the discretion to override this
clause in the case of a legitimate emergency which prevents an employee working
either part the split shift.
(f) While the Bus Drivers and Bus Supervisors work between the span of hours set out
in clause 12.3(d), the actual time worked in each part of the split shift varies from 25
minutes to 2 hours depending upon the bus route and the number of passengers being
transported, and the total time worked across both parts of the split shift varies from
50 minutes to 4 hours.
(g) Bus Drivers and Bus Supervisors will be paid the following minimum payments
for the split shift:
(i) where the total time worked across the split shift is less than 2 hours, they
will be paid a minimum of 3 hours; and
(ii) where the total time worked across the split shift is more than 2.5 hours but
less than 3 hours per day, they will be paid a minimum of 3.5 hours; and
(iii) where the total time worked across the split shift is more than 3 hours and
less than 3.5 hours per day, they will be paid a minimum of 4 hours; and
[2014] FWCFB 7097
3
(iv) where the total time worked across the split shift is more than 3.5 hours
and less than 4 hours per day, they will be paid a minimum of 4.5 hours.
(h) The minimum payments in clause 12.4(g) are payments inclusive of both parts of
the split shift, therefore for the total shift not for each part of the split shift.
...”
[7] The Award deals with the minimum engagement of casuals in cl. 10.5(d) as follows:
“(d) A casual employee is to be paid a minimum payment of three hours pay for each
shift. A casual employee solely engaged for the purpose of transportation of school
children to and from school is to be paid a minimum payment of two hours for each
engagement.”
[Emphasis added]
[8] 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. Given the
[2014] FWCFB 7097
4
nature of the applicant’s business, a number of Award allowances are not applicable to
the employees to be covered by the Agreement. Accordingly, they are not to be taken
into account in assessing the BOOT.
The Union’s case is predicated on an interpretation of the term ‘engagement’ as it
applies to casual Bus Drivers and Bus Supervisors who work a broken shift. It is
obvious that there are different views in the industry as to whether each part of the
broken shift is a separate engagement and whether a two hour minimum payment
applies to each part. See: the Agreements in para [14] above. It will be readily
apparent that the term ‘engagement’ (I suspect deliberately) is not used at all in cl 12.
Rather, the clause speaks of ‘part’ of the shift. In addition, I note that I have not been
asked to interpret the Agreement provision in these proceedings (although this would
seem problematic given the word ‘engagement’ is not used). However, as the Union
put, this issue is to be considered in the upcoming Four Yearly Review of Modern
Awards where the position will no doubt be clarified.
Notwithstanding the decision of Bissett C in TWU v APTIA, I do not accept that this
matter is definitively settled and certainly not by a Full Bench, which I would be
bound to follow. I do not understand the Full Bench decision ([2009] AIRCFB 826)
cited by Bissett C in TWU v APTIA to have determined the issue of whether the term
‘engagement’ in the Modern Award meant that casual bus drivers who transport
children to and from school, and who work a split shift, should be entitled to two
minimum engagement payments of two hours. In my view, the Union’s interpretation
of an engagement for the purposes of the BOOT in this case, is open to different
interpretations and cannot be said to be conclusive. I note that Bissett C said that the
Union’s proposed clause in that case had the potential to create more confusion than it
solved (para [32]).
The objects of Part 2.4 of the Act include: ‘to provide a simple, flexible and fair
framework that enables collective bargaining in good faith, particularly at the
enterprise level, for enterprise agreements that deliver productivity benefits’ (s
171(a)). Given that the underpinning purpose of an enterprise agreement is to provide
flexibility and benefits for both employees and the employer in a manner which suits
the specific circumstances of the business, cl 12, in my opinion, meets that purpose.
However, the Agreement must still meet the BOOT. While I consider this matter to be
finely balanced, I am satisfied that the employees are ‘better off’ overall and,
accordingly, the BOOT is met. In those circumstances, the Commission cannot refuse
to approve the Agreement (s 186(1)).”2
[9] The Deputy President continued to find that even if he were wrong about meeting the
BOOT, he was satisfied that he would approve the Agreement pursuant to s.189 of the Act
which allows the Fair Work Commission (the Commission) to approve an agreement if, due
to ‘exceptional circumstances’, it would not be contrary to the public interest to do so.
[10] The Deputy President made the following findings in relation to this issue:
“In applying the principles espoused in Nulty, that ‘exceptional circumstances’ means
‘out of the ordinary course, or unusual, or special, or uncommon’, I am satisfied that
such a finding is open in this case. I note the Union acknowledged that it was ‘unusual’
for a bus company not to have a depot which the Bus Drivers left from and returned to.
[2014] FWCFB 7097
5
It has specifically structured its business in this way to take account of the important
service it provides in transporting physically and mentally disabled schoolchildren to
and from their school with the minimum of inconvenience to them and their families.
It might also be said that the ability of some of the drivers to also be engaged as
employees of Education Queensland at the school to which the children are
transported, constitutes an unusual and special employment arrangement.
...
Given the important community service in which the applicant is engaged in, I am
satisfied that it would not be contrary to the public interest for the employees to work
their special arrangements under the Agreement, so as to meet the critical needs of
their passengers. Accordingly, I would also approve this Agreement based on the
requirements set out in s 189 of the Act.”3
The appeal
[11] The TWU submits on appeal that the Deputy President erred in his consideration of
the benefits said to flow from the Agreement. It is submitted that the Decision discloses error
as the Deputy President took into account irrelevant matters and failed to adopt the correct
approach in assessing whether the Agreement passed the BOOT, including by failing to apply
the BOOT to the correct point in time. Further, it was submitted that the Deputy President
erred in his application of s.189(2) of the Act in finding that exceptional circumstances
existed such that the approval of the Agreement would not be contrary to the public interest
despite it not satisfying the BOOT.
The BOOT
[12] The TWU submitted that there was ambiguity in the Decision as the Deputy President
found that the interpretation of the Award was not “definitively settled” but did not explicitly
reject the TWU’s interpretation of the Award.4 The TWU contends that the Decision must be
approached on the basis that the Deputy President accepted the interpretation of the Award
put forward by the TWU and that this formed the basis of his application of the BOOT. While
it is not explicitly stated in the Decision, it is clear that the Deputy President was of the view
that even if he were to accept the TWU’s interpretation of the Award, he was still satisfied
that the Agreement met the BOOT. Such an approach was open to the Deputy President, and
we find no error in this respect.
[13] The TWU also submitted that the Deputy President was in error in relation to a
number of benefits that he found to be relevant in applying the BOOT. These submissions
will be dealt with individually below.
Employee’s commencing work from own home
[14] The TWU submits that the Deputy President was in error to consider that the fact that
employees do not have to travel to a central depot was a benefit flowing from the Agreement
as opposed to working under the Award. The TWU contends that this benefit is not related to
the Agreement, but arises purely out of the manner in which the Respondent operates its
business.
[2014] FWCFB 7097
6
[15] The Respondent submits that this operational aspect of its business is “enshrined” in
cl. 19 of the Agreement which provides as follows:
“19 Company Buses
19.1 The Company provides each Bus Driver with a fully maintained Company bus
('Bus').
19.2 The Bus Drivers use the Bus allocated to them for the performance of their duties
and garage the Bus at the place of residence at all times that the Bus is not on its
designated route. The Bus needs to be kept locked and secure at all times when not in
service. The Company accepts the Bus Driver may not have a garage capable of
parking the Bus in, but the Bus must be parked on the property in a safe place.
19.3 The Bus Drivers start each shift for their designated bus route from their place of
residence and return to their place of residence. They are not required to attend the
premises of the Company. Therefore, each Bus Driver obtains the benefit of not:
(a) spending time travelling to and from work to start their shift each working
day; and
(b) having to have a personal vehicle (including its running costs), or incur
other costs to travel to the Company's premises, to collect their Bus and start
their shift on their designated route.
19.4 Some of the Company's Bus Drivers are also employees of Education Queensland
and work at the school where they are transporting students to. These Bus Drivers
obtain the benefit of using the Bus as a cost free means of travelling to their primary
place of employment each working day, and home again, whilst performing their
duties for the Company.
19.5 Bus routes are determined taking into account the location of a Bus Drivers place
of residence and making the first student collection as close as possible to the Bus
Driver's place of residence in order to minimise the length of running time between the
Bus Driver's home and the start of the bus route. This provides each Bus Driver with a
tailor made bus route to suit the location of their place of residence.
19.6 Bus Drivers and Bus Supervisors have a large degree of autonomy in the
performance of their duties but have access to the Directors 24 hours a day, 7 days a
week for any support they may require.
19.7 The Company provides the Bus Drivers with a bus that is not more than 15 years
old and all new buses since the beginning of 2013 and onward are automatic buses to
ensure driver comfort and more ease when driving, particularly less stress on their
knees due to not having to use a clutch.
19.8 Management from the Company collect the Buses from each Bus Driver's place
of residence when required for maintenance, servicing or machinery inspections. They
are collected and returned outside of the times allocated to bus routes unless the bus
[2014] FWCFB 7097
7
requires urgent repairs, at which time the Bus is replaced with another Bus to allow the
Bus Driver to service the bus route whilst the Bus is being repaired.
19.9 Bus Drivers and Bus Supervisors are required to keep their Bus in a clean and
tidy appearance each day. Bus Drivers are required to wash their bus regularly and as
needed to maintain it in a clean appearance at all times. If the Company considers the
bus needs to be cleaned at any time, the Directors may direct the Bus Driver to wash
the Bus. If the Company considers the bus is not being kept in a clean and tidy
condition at any time, the Directors may direct the Bus Driver and Bus Supervisor to
clean and tidy the bus. The Company has included an allowance for bus washing in the
Wages in Schedule 1.
19.10 Bus Drivers are required to refuel their Bus and keep their Bus sufficiently
fuelled to enable completion of their daily school run. The Company has included an
allowance for bus refuelling in your Wage in Schedule 1.
19.11 Refuelling of the bus is to be performed at the Company's nominated fuel
supplier, BP Australia, at a service station location that is the most convenient for the
Bus Driver. Refuelling is never to be done when students are on board the bus.
19.12 All running expenses, cleaning equipment and supplies and any bus incidental
supplies such as tissues, first aid supplies, disinfectant wipes and sprays, are provided
by the Company.
19.13 Bus Driver's [sic] may request to use the Bus for personal use. If a Bus Driver
wishes to use the Bus for a personal use the Bus Driver must first speak to the
Directors and obtain prior approval to do so. Generally, the Directors will not deny the
Bus Driver's request. If a Bus Driver uses a Bus for personal use without prior
approval from the Director's, the Bus Driver may be subject to disciplinary
proceedings, up to and including dismissal.”
[16] The Respondent accepts that the language used is descriptive and not prescriptive, but
asserts that it would be an overly prescriptive approach to the interpretation of the Agreement
to conclude that the Respondent could, despite cl. 19, introduce a centralised depot and not be
in breach of the Agreement. Despite this submission, the Respondent has provided an
undertaking that it will not introduce a centralised depot for the life of the Agreement.
[17] We are satisfied that the benefits described in cl. 19 are benefits that flow from the
Agreement and were properly taken into account by the Deputy President in his application of
the BOOT. Despite the descriptive language, any change to the terms and conditions of
employment as set out in cl. 19 would enliven a claim pursuant to cl. 6 of the Agreement
which provides as follows:
“6 No Further Claims Commitment
The parties to this Agreement undertake that during the period of operation of this
Agreement neither party will seek any changes to the terms and conditions of
employment in this Agreement or seek further remuneration or employee benefits not
contained in this Agreement for the duration of this Agreement.”
[2014] FWCFB 7097
8
[18] When considered contextually, it is clear that cl. 19 does provide a benefit to the
Respondent’s employees. In light of this finding, there is no need to rely on any undertaking
from the employer in relation to this aspect of the Agreement.
[19] The Respondent submitted at first instance that if it was forced to pay its employees
for two hours for each part of the split shift performed it would review it operations and likely
implement a centralised depot. The TWU now submits that this “threat” was of no relevance
in applying the BOOT, as the BOOT requires a comparison of terms and conditions of
employment at the time the test is applied rather than an assessment of the practices and
working arrangements that may flow from the terms of a reference instrument.5 While the
TWU does not assert that the Deputy President made this error in his application of the
BOOT, to avoid doubt, we find that the Deputy President made no such error in applying the
BOOT.
Use of bus for personal purposes
[20] The Deputy President found that the ability of the drivers to use the bus for personal
purposes with the permission of the Respondent was a benefit, albeit a “relatively modest
one.”6 Clause 19.13 of the Agreement, extracted above, provides that prior approval must be
obtained in order to use a bus for private purposes but that “[g]enerally, the Directors will not
deny the Bus Driver’s request.” The TWU argue that this provision provides no benefit to
drivers as compared with the Award, as bus drivers are free to seek permission to use a bus
for personal purposes under the Award (which is silent on the issue).
[21] We are not satisfied that the TWU has demonstrated an error on the Deputy
President’s part in making this finding. Absent cl. 19.13 of the Agreement, the Respondent
would be entitled to introduce a policy that prevented its employees from using the buses for
personal purposes at all. While we agree with the Deputy President’s assessment that this is a
“relatively modest” benefit, we are not satisfied that his Honour has made an error in
considering this to be a benefit.
Drivers not required to work minimum engagement period
[22] The Deputy President found that it was a benefit to the employees that they were free
to return home after they had finished their shift and were not required to work the balance of
the minimum engagement period. The TWU submitted that this factor does not properly
constitute a benefit under the Agreement, as the Award also provides for a minimum
engagement period and does not require that the employee be directed to perform work for the
full period of the engagement.
[23] When considered in context, however, it is clear that the reason employees are free to
go directly home once they have finished working their shift and are not required to work the
balance of the minimum engagement period is a consequence of the various terms and
conditions specified in cll. 19 and 12 of the Agreement. We are not satisfied that the Deputy
President has made an error in this finding.
Mobile phones
[24] The Deputy President found that it was a benefit to the employees that they were
provided with mobile phones and were entitled to keep those phones if the company replaced
[2014] FWCFB 7097
9
them. The TWU did not submit that the Deputy President made an error in this finding but
submitted that this benefit is negligible at best. Even were we to accept the TWU’s
submissions on this point, it would not be of any benefit in determining whether or not the
TWU’s appeal should be allowed. We find that this factor is an irrelevant consideration for
present purposes.
Bus supervisors
[25] The TWU asserts that the Deputy President appears to have disregarded the position of
bus supervisors in his assessment of the non-monetary benefits associated with the
Agreement. The TWU asserts that bus supervisors do not obtain any benefit from
arrangements permitting drivers to commence their shift from their place of residence or from
the possibility of personal use of a bus and are not provided with a mobile phone. It is
asserted that the Deputy President erred by failing to separately consider whether the bus
supervisors were better off overall under the Agreement, on the basis that it was the non-
monetary benefits that were considered to outweigh the detrimental provision relating to
minimum engagements.
[26] The Respondent submitted that while the Deputy President did not deal separately
with the position of the bus supervisors, it is clear throughout the Decision that the Deputy
President considered their position and that the conditions for supervisors are separately dealt
with in cll. 12 and 19 of the Agreement. The Respondent further submitted that of the 26
employees who work for Education Queensland, and therefore have the benefit of being able
to leave the bus at their workplace for the duration of the day and to utilise it to return home,
16 are bus supervisors.
[27] We are satisfied that the Deputy President took into account the position of the bus
supervisors in coming to his decision on the BOOT. The Deputy President noted in his
Decision that under the Agreement bus supervisors are paid at a rate 0.5% higher than the
Award. The Deputy President also makes explicit reference to bus supervisors in considering
the position of employees with respect to the Agreement’s split shift provisions. It is also
clear that there would be benefits for bus supervisors as well as drivers in the arrangements
regarding how time worked is calculated under the Agreement. In these circumstances, we
can see no appealable error in the Deputy President’s approach.
Conclusion
[28] The application of the BOOT is a matter that involves the exercise of discretion, and it
involves a degree of subjectivity or value judgement.7 Whether this Full Bench would have
come to a different conclusion is not relevant. The issue before us is whether the Deputy
President made an error of the kind described in House v The King8 in making his decision.
We are not satisfied that any such error was made in the Deputy President’s application of the
BOOT.
Approval of the Agreement pursuant to s.189
[29] Even if it was determined that the BOOT was not met, we are nonetheless satisfied
that the Deputy President did not err in finding that the Agreement could otherwise be
approved in accordance with s.189(2) of the Act.
[2014] FWCFB 7097
10
[30] Section 189 of the Act provides as follows:
“189 FWC may approve an enterprise agreement that does not pass better off
overall test—public interest test
Application of this section
(1) This section applies if:
(a) the FWC is not required to approve an enterprise agreement under
section 186; and
(b) the only reason for this is that the FWC is not satisfied that the
agreement passes the better off overall test.
Approval of agreement if not contrary to the public interest
(2) The FWC may approve the agreement under this section if the FWC is
satisfied that, because of exceptional circumstances, the approval of the agreement
would not be contrary to the public interest.
Note: The FWC may approve an enterprise agreement under this section with
undertakings (see section 190).
(3) An example of a case in which the FWC may be satisfied of the matter referred
to in subsection (2) is where the agreement is part of a reasonable strategy to deal with
a short term crisis in, and to assist in the revival of, the enterprise of an employer
covered by the agreement.
...”
[31] The TWU’s submissions can be summarised as follows:
1. There was no logical connection between the “exceptional circumstances” that the
Deputy President identified (namely, the lack of a centralised depot and the ability for
some employees to also be engaged as employees of Education Queensland at the
schools to which the children are transported) and the public interest.
2. It is a fundamental feature of the Act that modern awards set safety net conditions
of employment applicable across particular industries. The Deputy President erred in
not having regard to the interests of employees covered by the Award generally or the
public interest consideration in maintaining a level playing field among employees in a
particular industry or sector.
[32] In relation to whether the exceptional circumstances identified by the Deputy
President were logically connected with the public interest, we are satisfied that the Deputy
President adequately drew this connection. The Deputy President explicitly explained this
logical connection by stating that “[the Respondent] has specifically structured its business in
this way to take account of the important service it provides in transporting physically and
mentally disabled schoolchildren to and from their school with the minimum of
[2014] FWCFB 7097
11
inconvenience to them and their families.”9 We are satisfied that the Deputy President
adequately explained the logical connection between the exceptional circumstances identified
by the Deputy President and the public interest.
[33] Further, while the Deputy President did not explicitly refer to the public interest in
maintaining a level playing field among employees in a particularly industry or sector, we are
not satisfied that he was required to do so in the circumstances. In Re Jellifish! Pty Ltd,10 (Re
Jellifish!) Asbury C (as she then was) said:
“With respect to the “public interest” consideration in s 189(2) it is true, as observed by
Deputy President Bartel in Top End Consulting that the requirement is for the Tribunal
to be satisfied that the existence of exceptional circumstances makes the approval of
the agreement “not contrary to the public interest” rather than to be satisfied in a
positive sense that approval of the agreement is in the public interest. It is also the case
that the expression “in the public interest” when used in legislation, is to be determined
by making a discretionary value judgment on the relevant facts, constrained only by
the scope and purpose of the legislation.
In relation to public interest in the context of the Act, Vice President Lawler in Re
Tahmoor Coal Pty Ltd cited the following passage from the Full Bench decision of the
Australian Industrial Relations Commission in Re Kellogg Brown and Root, Bass
Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000:
The notion of public interest refers to matters that might affect the public as a
whole such as the achievement or otherwise of the various objects of the Act,
employment levels, inflation, and the maintenance of proper industrial
standards. An example of something in the last category may be a case in
which there was no applicable award and the termination of the agreement
would lead to an absence of award coverage for the employees. While the
content of the notion of public interest cannot be precisely defined, it is distinct
in nature from the interests of the parties. And although the public interest and
the interests of the parties may be simultaneously affected, that fact does not
lessen the distinction between them.
In my view, public interest considerations in the context of s 189 could involve
deciding whether a term of an agreement sought to be approved under that provision,
undermines or reduces entitlements in a modern award to the extent that members of
the public whose employment is regulated by that award may have interests which are
impacted by the approval of the agreement. It may also be the case that there is a
public interest consideration in maintaining a level playing field among employees in a
particular industry or sector. This is particularly so given that the Objects of the Act
include at s 3(b):
ensuring a guaranteed safety net of fair, relevant and enforceable minimum
terms and conditions through the National Employment Standards, modern
awards and national minimum wage orders.”11
[Citations omitted]
[2014] FWCFB 7097
12
[34] Section 189 of the Act requires a decision-maker to make a discretionary decision in
determining if he or she is satisfied that, because of exceptional circumstances, the approval
of the agreement would not be contrary to the public interest. In these circumstances, we may
only interfere where an error of the kind in House v The King12 is established. In House v The
King the majority of the High Court said:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so.”13
[35] We are not satisfied that the Deputy President has improperly exercised his discretion
in determining that, because of exceptional circumstances, the approval of the agreement
would not be contrary to the public interest. The factors that Asbury C identified in Re
Jellifish! are matters that could be taken into account when considering whether or not the
Commission should utilise its discretion to approve an agreement in accordance with s.189 of
the Act. There is, however, no obligation for a decision-maker to expressly refer to each of the
factors identified by Asbury C. We are satisfied that the Deputy President properly exercised
his discretion in identifying relevant exceptional circumstances and proceeding to find that it
was not contrary to the public interest for the Agreement to be approved.
Conclusion
[36] The Commission must grant permission to appeal if it is satisfied it is in the public
interest to do so.14 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,15 a Full Bench
summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters...”
[37] We do not consider that the TWU has demonstrated that it is in the public interest to
grant it permission to appeal the Deputy President’s Decision.
[2014] FWCFB 7097
13
[38] As the Deputy President was not in error, the first instance Decision does not manifest
any injustice, nor does the Deputy President’s Decision warrant revisiting. Permission to
appeal is refused.
VICE PRESIDENT
Appearances:
A Howell of Counsel for the Transport Workers’ Union of Australia.
A J Coulthard of Counsel for Jarman Ace Pty Ltd T/A Ace Buses.
Hearing details:
2014.
Sydney and Brisbane (video hearing):
August 22.
Printed by authority of the Commonwealth Government Printer
Price code C, PR556376
1 Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338.
2 Ibid [30]-[34].
3 Ibid [38]-[40].
4 Ibid [33].
5 Top End Consulting Pty Ltd [2010] FWA 6442, [27]-[28].
6 Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338, [30].
7 ALDI Foods Pty Ltd v Transport Workers' Union of Australia (2012) 227 IR 120, 123–4.
8 (1936) 55 CLR 499, 505.
9 Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338, [38].
10 (2012) 227 IR 372.
11 Re Jellifish! Pty Ltd (2012) 227 IR 372, 392.
12 (1936) 55 CLR 499.
13 House v The King (1936) 55 CLR 499, 404–405.
14 Fair Work Act 2009, s.604(2).
15 [2010] FWAFB 5343 at [27].
THE FAIR WORK COMMISSION THE SEAA
