[2023] FWCFB 171
Previously published with MNC [2023] FWCA 3001.
Associate to Deputy President Wright
Dated 21 September 2023
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb171.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwca3001.pdf
1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional
instruments
Suncoast Cabs Ltd T/A Suncoast Cabs
(AG2023/1615)
SUNCOAST CABS CUSTOMER BOOKING SERVICE CENTRE
EMPLOYEE COLLECTIVE AGREEMENT
Clerical industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 18 SEPTEMBER 2023
Application to extend the default period for the Suncoast Cabs Customer Booking Service
Centre Employee Collective Agreement
Introduction
[1] Suncoast Cabs Ltd (Applicant) has applied under item 20A(4) of Schedule 3 to the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act)
to extend the default period for the Suncoast Cabs Pty Ltd Customer Booking Service Centre
Employees Collective Agreement 2009 (Agreement) for a period of four years.
[2] The Agreement was approved on 24 June 2009 under s.340 of the Workplace Relations
Act (1996) (WR Act). It is a collective agreement-based transitional instrument within the
meaning of item 2(5)(c) of Schedule 3 to the Transitional Act.
[3] Under the terms of the Agreement, the parties bound by the Agreement are the Applicant
and persons engaged in the classifications contained within it. It applies to persons employed
by the Applicant in the State of Queensland wholly or principally as telephonists, monitors,
customer booking service centre operators and supervisors. The Agreement continues to apply
due to item 3 of Schedule 3 of the Transitional Act.
[4] The Transitional Act was amended by the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Act 2022 to provide for the automatic termination of all remaining transitional
instruments. Pursuant to items 20A(1) and (2) of Schedule 3 to the Transitional Act, the
Agreement will terminate on 6 December 2023 unless it is extended by the Commission. The
main features of item 20A of Schedule 3 to the Transitional Act are described in detail in the
Full Bench decision in Suncoast Scaffold Pty Ltd1 and we rely upon what is said in that decision.
[2023] FWCFB 171
DECISION
AUSTRALIA FairWork Commission
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb171.pdf
[2023] FWCFB 171
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[5] Under subitem (6) of item 20A, upon application, the Commission is required to extend
the default period for an agreement-based transitional instrument for a period of no more than
four years if the Commission is satisfied that:
(a) Subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to
do so; or
(b) it is reasonable in the circumstances to do so.
[6] The application is advanced on the basis that subitem (9) applies and it is otherwise
appropriate in the circumstances to extend the default period.
[7] Subitem (9) applies if:
(a) the application relates to a collective agreement-based transitional instrument; and
(b)it is likely that, as at the time the application is made, the award covered employees
for the instrument under subitem (10), viewed as a group, would be better off overall if
the instrument applied to the employees than if the relevant modern award or awards
referred to in that subitem applied to the employees.
[8] Under subitem (10) of item 20A, ‘award covered employees’ for a collective agreement-
based transitional instrument are those employees covered by the instrument who, at the time
an extension application is made, are covered by one or more modern awards that are in
operation in relation to the work to be performed under the instrument, and are employed at that
time by an employer who is covered by the instrument and the modern award(s).
[9] For the purposes of subitem (10), at the time the extension application was made, the
Agreement covered employees engaged in classifications covered by the Clerks – Private
Sector Award 2020.
Better Off Overall Analysis
[10] For the purposes of assessing the better off overall criterion in subitem (9) of Schedule
20A of the Transitional Act an analysis was prepared by the Commission’s Agreements Team
comparing the terms of the Agreement with the terms of the Award. The analysis was provided
to the Applicant. It revealed the following.
A. Rates of Pay
[11] The Agreement at clause 5.3.1 provides pay rates that applied at the commencement of
the Agreement and up until 29 September 2009. Clause 5.3.2 provides, from 1 October 2009
the rates would be increased in accordance with the decision of the National Wage Review for
2009. Thereafter, for the life of the Agreement, further wage increases were to be in accordance
with the National Wage increases awarded by the national wage fixation body within Fair Work
Australia, which were expected to be effective from the first pay period commencing on or after
1 July each year.
[12] The expression ‘life of the agreement’’ is problematic. A Full Bench recently described
the similar phrase ‘‘the lifetime of this Agreement’ as ‘plainly ambiguous’1. Clause 1.3 of the
[2023] FWCFB 171
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Agreement provides some context as to the meaning of the expression by stating that the
Agreement ‘took effect 7 days after approval from the Workplace Authority and shall remain
in force for a period of three years’. On one view the Agreement only required National Wage
increases to be applied during that three-year period. Another view is that the life of the
Agreement was the time in which it continued to apply. The Agreement continued to apply after
the three years referred to in clause 3.1 in accordance with subitem 3(2) of Schedule 3 of the
Transitional Act and will continue to apply until 6 December 2023 unless the default period is
extended. We note that the Applicant has taken the latter approach and applied the National
Wage Review increases to the Agreement beyond the three years referred to in clause 3.1.
[13] We do not need to resolve this issue as it is not material to our ultimate finding. This is
so because we find, for the reasons below, that the Agreement does not meet the better off
overall criterion using the more generous construction that the Agreement rates increased every
year since the Agreement was approved.
[14] Applying the National Wage increases from 2009 to the rates in clause 5.3.1, as at the
time of the application, which was before the 2023 National Wage Review, and comparing
them to the Award rates gives the following result:
Modern Award
Classification
Agreement
Classification
Modern
Award
Rate
Agreement
Rate
Percentage
Difference
Clerks—Private Sector Award 2020
Wage increases up until 21/22 FY
Level 1 - Year 1 Level 1 - Year 1 $22.67 $22.97 1.32%
Level 1 - Year 2 Level 1 - Year 2 $23.74 $23.87 0.55%
Level 1 - Year 3 Level 1 - Year 3 $24.47 $24.63 0.65%
Level 2 - Year 1 Level 2 - Year 1 $24.76 $24.91 0.61%
Level 2 - Year 2 Level 2 - Year 2 $25.22 $25.38 0.63%
Level 3 Level 3 $26.15 $26.49 1.30%
Level 4 Level 4 $27.46 $27.62 0.58%
Level 5 Level 5 $28.58 $28.74 0.56%
[15] The Agreement rates of pay are marginally higher than the Award.
[16] The Agreement covers junior employees at clause 5.4. The percentages of the
appropriate minimum adult rates payable to 15- and 16-year-olds in the Agreement are the same
as the Award, making the Agreement rates for these employees marginally above the Award.
The percentages of the appropriate minimum adult rates payable to 17-, 18-, 19- and 20-year-
olds are less than the percentages provided for in the Award, resulting in the rates in the
Agreement afforded to employees at these ages being less than the rates in the Award.
[17] The Agreement also mentions apprentices and trainees at clause 10.3.1 but rates of pay
have not been provided.
B. Ordinary Hours of Work, Weekend Work, Overtime and Shift Penalties
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[18] Clause 13.3 of the Award provides for ordinary hours of 38 hours per week to be worked
between 7am and 7pm Monday to Friday, and 7am and 12:30pm on Saturdays. The Agreement
does not set a span of ordinary hours. Clause 6.1.1 of the Agreement provides that ordinary
time may be worked over 24 hours a day, 7 days per week, with no employee being required to
work an average of more than 38 ordinary hours per week over a 28-day work cycle involving
no more than 20 ordinary working days by each employee. Clause 6.1.2 of the Agreement
provides that ordinary hours of work shall not exceed 8 hours per day.
[19] The Agreement does not contain weekend penalties. The Award, at clause 24, provides
for a penalty of 125% for working ordinary hours on Saturdays, and 200% with a minimum
engagement period of 4 hours on Sundays.
[20] Employees under the Agreement only receive overtime entitlements for work in excess
of 8 hours per day, or 10 hours by agreement according to clause 6.1. The Award, at clause
21.1(c), provides for overtime rates for work performed outside the spread of ordinary hours.
In addition, the Award provides for overtime for work in excess of 10 ordinary hours on any
one day, excluding unpaid meal breaks; or for overtime worked on a rostered day off that is not
substituted or banked; or for part-time employees, in excess of the number of ordinary hours
that the employee has agreed to work. The minimum engagement for part time employees under
clause 4.2.5 of the Agreement is 4 hours instead of the 3 hours in clause 10.5 of the Award.
[21] The overtime rates in clause 6.7 of the Agreement are also inferior to the overtime rates
in the Award. The Agreement provides for time and a half for the first 3 hours of overtime on
Monday to Saturday with double time thereafter. On Sunday the rate is double time with a
minimum payment for 2 hours. The Award, at clause 21.4, provides for 150% for the first 2
hours on Monday to Saturday and 200% thereafter with 200% on Sunday and 250% on Public
Holidays. The Award provides for overtime rates for casual employees. The Agreement does
not.
[22] Clause 6.8 of the Agreement provides for shift workers, although the expression shift
worker is not defined. In some circumstances the shift worker penalties are marginally higher
than the penalties provided for in the Award. The Agreement provides that employees who
perform shiftwork are to be paid a penalty rate of 17% for all ordinary shifts (which we read as
117% of the ordinary rate). The Award provides the following penalties:
• Afternoon shift meaning a shift finishing after 7pm and at or before midnight attracting
a penalty of 115%.
• Night shift meaning a shift finishing after midnight, and at or before 7.00 am attracting
a penalty of 115%.
• Night shift which does not rotate with another shift or day work, and which continues
for a period of 4 consecutive weeks attracting a penalty of 130%.
• Shiftwork which involves working Saturday, Sunday or public holidays attracting a
penalty of 150%
[23] Overtime rates for shift workers are higher under the Agreement which, at clause 6.8.1
provides double time for all overtime worked. The Award at clause 28.1 provides for 150% of
hourly rates for the first 3 hours of overtime worked by shift workers in excess of weekly hours
or 150% for the first 2 hours worked in excess of daily hours and 200% thereafter. Award
overtime for shift workers is 200% on weekends or public holidays.
[2023] FWCFB 171
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[24] Clause 7.1.1(b) of the Agreement provides that continuous shift workers will be entitled
to 5 weeks’ annual leave per year however the Agreement does not contain a definition of shift
worker. Clause 32.2 of the Award does. Consequently, there is uncertainty surrounding the
annual leave available to shift workers.
C. Allowances
[25] The Agreement is silent on all Award allowances except for travel allowance at clause
5.7.1 which is $0.74 per kilometre for motor car or $0.25 per kilometre for motorcycles, a meal
allowance at clause 6.6.1(d) which is $9.60, in lieu of a 20-minute overtime meal break, and
higher duties payment at the higher classification level where higher duties are performed for
more than 2 days. These allowances are lower than those provided under the Award which
provides a vehicle allowance of $0.95 per kilometre at clause 19 and $0.32 per kilometre for
motorcycles, a meal allowance of $18.32 at clause 19.5, and at clause 19.3 for the payment at
a higher classification where higher duties are performed for more than 1 day. Clause 19 of the
Award also provides a first aid allowance, clothing and footwear allowance, laundry allowance,
living away from home allowance, and an allowance for transport reimbursement for
shiftwork.
D. Actual Rates
[26] The Applicant provided a schedule of actual rates paid to its employees. The Schedule
was labelled SCC Staff Pay Rates – 1/7/22. An analysis of those rates was conducted as
compared to the Award.
Modern Award
Classification
Agreement
Classification
Modern
Award
Rate
Agreement
Rate
Percentage
Difference
Clerks—Private Sector Award 2020
SCC Staff Pay Rates - 1/7/22
Permanent
employees
- Admin
Level 1 - Year 1 Level 1 - Year 1 $22.67 $22.61 -0.26%
Level 1 - Year 2 Level 1 - Year 2 $23.74 $23.73 -0.04%
Level 1 - Year 3 Level 1 - Year 3 $24.47 $24.47 0.00%
Level 2 - Year 1 Level 2 - Year 1 $24.76 $24.77 0.04%
Level 2 - Year 2 Level 2 - Year 2 $25.22 $25.22 0.00%
Permanent
employees -
Call Centre
Level 1 - Year 1 Level 1 - Year 1 $22.67 $26.45 16.67%
Level 1 - Year 2 Level 1 - Year 2 $23.74 $27.76 16.93%
Level 1 - Year 3 Level 1 - Year 3 $24.47 $28.63 17.00%
[2023] FWCFB 171
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Level 2 - Year 1 Level 2 - Year 1 $24.76 $28.98 17.04%
Level 2 - Year 2 Level 2 - Year 2 $25.22 $29.51 17.01%
[27] The Applicant’s actual rates differ to some extent but not greatly to the rates calculated
in the Commission’s analysis in the earlier table. The differences however suggest that call
centre staff are paid the 17% shift worker loading in clause 6.8 of the Agreement. Clause 6.8
reads:
6.8 Shift work, Night Work and Weekend Work-Ordinary Time Hours
6.8.1 Notwithstanding clause 1.4, as a non-metropolitan cab company, time zone
penalties for ordinary time may be paid for in the form of an extra loading of 17% for
all ordinary shifts and 21% for split shifts by non-
casual employees (ie where the break in the ordinary day's work is an unpaid period
from 2 to a maximum of 4 hours) except where such a break is at the employees request
to meet personal circumstances.
The purpose of the 16% averaged loading for all ordinary time worked in the customer
service booking centre is to ensure a stable or regular income for all ordinary time
worked by shift workers as far as reasonably possible, irrespective of the rostered times
worked in any particular pay period. This 16% loading does not apply to paid annual
leave or for work on statutory holidays when higher loadings apply.
[28] We read the reference to 16% in the second paragraph of the clause as a typographical
error. The paragraph is describing the purpose of the 17% allowance in the first paragraph. Read
with the heading of clause 6.8 it is tolerably clear that the loading is paid in lieu of shift
penalties, including weekend penalties. In other words, 17% or 21% is paid in lieu of the 15%
penalty for afternoon and fixed night shifts, the 30% penalty for permanent night shift and the
50% penalty for working shift work on Saturday, Sunday and public holidays.
Submissions
[29] The Applicant provided a response to the Commission’s analysis. The response did not
disagree with the hourly rate comparisons in that analysis. It clarified that the call centre staff
are paid the 17% shift penalty. Overtime is paid at 150% for the first 3 hours, suggesting that
the employees are not treated as shift workers for overtime purposes, as the shift work overtime
rate is double time. We were not provided with details of the hours worked in the call centre.
We infer that the nature of the Applicant’s business requires work to be performed in its call
centre outside of the ordinary hours being after 7.00pm and on weekends and public holidays.
[30] The Applicant did state that all employees are engaged as part-time employees. Staff
are rostered in accordance with their availability included at night and on weekends. The
Applicant has not employed apprentices or trainees in the last 5 years which suggest apprentices
or trainees have been employed while the Agreement operated. No allowances are paid. All call
centre staff are provided 5 weeks’ annual leave.
Consideration
[31] In accordance with the principles outlined in Suncoast Scaffolding we are required to
undertake a broad evaluative judgment based upon an overall comparison of the terms of the
[2023] FWCFB 171
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Agreement and the relevant Award in its application to the Award covered employees. We have
taken into account each of the entitlements provided for by the Agreement and the Award.
[32] The hourly rates of pay for work performed for ordinary hours in the Agreement for
administrative staff are close to the Award rates. In relation to junior employees who are 17 to
20 years old the hourly rates in the Agreement are less than the Award. There are no Agreement
rates for apprentices and trainees. It appears that apprentices have been employed by the
Applicant in the past.
[33] The call centre workers are paid a 17% shift penalty for all ordinary hours in lieu of shift
allowances and weekend work. This is marginally higher than the Award for weekday shift
work but is significantly lower than the penalties applying under the Award for shift work
involving weekends and public holidays.
[34] The allowances that are in the Agreement, travel and clothing allowances, are
significantly less than the Award. The Agreement does not provide for the other allowances
provided for in the Award being the first aid allowance, clothing and footwear allowance,
laundry allowance, living away from home allowance, or transport allowance for shiftwork.
[35] We consider that the inferior provisions of the Agreement arising from the lack of a
defined span of hours and its impact on the treatment of overtime and shift and weekend
penalties, and the inferior allowances, weigh against a conclusion that the employees are better
off under the Agreement. The administrative employees and junior employees between 17 years
and 20 years are certainly not better off given the Agreement pay rates are below the Award.
[36] While this deficiency is addressed by item 13 to Schedule 9 of the Transitional Act,
which has effect in relation to these employees so that the base rates of pay in the Agreement
are equal to the Award rates, this does not make the employees better off overall. We also find
that the 17% shift penalty is insufficient compensation for the penalties provided in the Award.
This is especially the case given the penalties associated with weekend shift work. We are of
the view that it is likely that, as at the time the application was made, employees under the
Agreement, viewed as a group, would not be better off if the Agreement applied to them than
if the Award applied.
[37] Consequently, the requirement in subitem 9(b) has not been met, and it is unnecessary
to consider whether it is ‘otherwise appropriate’ to extend the default period under subitem
6(a).
[2023] FWCFB 171
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Conclusion
[38] Accordingly, we decline to grant the Application to extend the default period of the
Agreement.
[39] The Application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC324264 PR766494
1 Australian Workers' Union v Orica Australia Pty Ltd [2022] FWCFB 90 at [20];
OF THE FAIR WORK L MISSION THE SEA
