FWC rejects dispute claim for employee to receive higher classification for all work performed

FWC rejects dispute claim for employee to receive higher classification for all work performed

The Fair Work Commission (FWC) has dismissed an employee’s claim that work he performed as a cleaner should be remunerated under his substantive position as a bus driver for two separate but related entities.

The worker has been employed since 19 August 2019 at the Laurieton depot of Busways Pacific Pty as a casual bus driver pursuant to the Busways Pacific Fair Work Agreement 2020 (the Agreement). Busways are part of a corporate group of approximately 30 separate corporate entities that employ approximately 2900 people and operate a fleet of over 1350 buses throughout New South Wales and South Australia.

The bus driver is usually rostered to drive a school bus along assigned routes on school days each morning and afternoon.

Shortly after commencing work as a bus driver, he was approached by a colleague to see if he was interested in working as a casual cleaner. He spoke to the Operations Manager and commenced a second job as a casual cleaner in October/November 2019.

He received a separate employment contract with Busways North Coast EMP Pty Ltd, with his conditions of employment governed by the Passenger Vehicle Transportation Award 2010.

The bus driver lodged a dispute with the FWC, contending that his employment as a casual cleaner should be covered by the Agreement. Alternatively, he submitted that his duties as a casual cleaner fell within the scope of his role/classification as a casual bus driver with Busways Pacific Pty Ltd.

In a submission before Commissioner Peter Ryan, Busway’s Operations Manager stated that it was common for bus drivers to be employed as cleaners as a way of offering additional work and income; however, there were cleaners that were not bus drivers, and although it was convenient for cleaners to possess a bus licence, it was not essential for the position of cleaner.

In rejecting the driver’s claims, Commissioner Ryan highlighted the coverage clause of the Agreement, which states, “This Agreement shall apply to all employees who are employed wholly or principally by the company as bus drivers and who perform bus driving work in New South Wales”.

Busways submitted that there was nothing illegitimate about an employee holding two separate and distinct forms of employment, whether it was with the same entity or different entities within a corporate group.

Commissioner Ryan agreed, noting, “I find that the Applicant has two separate and distinct positions: one as a bus driver employed by Busways Pacific Pty Ltd regulated by the Agreement; and the other as a cleaner employed by Busways Pacific EMP Pty Ltd regulated by the Award. Therefore, the Agreement does not apply to the Applicant’s role as a cleaner because that is separate and distinct with an employing entity that is neither the Respondent in this matter nor covered by the Agreement”.

The Application was dismissed.

Mr JRM v Busways Group Pty Ltd T/A Busways [2022] FWC 2412

For queries about awards, enterprise agreements, discipline, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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