Altus Traffic Pty Ltd

[2013] FWC 9327

[2013] FWC 9327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Altus Traffic Pty Ltd
(AG2013/9184)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 27 NOVEMBER 2013

Application for approval of the Altus Traffic (SA) Enterprise Agreement 2013 - application refused.

[1] On 6 November 2013 I issued a decision 1 in which I considered the application of the "better off overall test" under the Fair Work Act 2009 (the FW Act) with respect to an application for approval of the Altus Traffic (SA) Enterprise Agreement 2013. In that decision I concluded that unless Altus Traffic Pty Ltd (Altus) provided a number of specified undertakings within a nominated time period, the application would be dismissed. I note that this decision also referred to an earlier decision2 in which I refused to terminate the existing Altus agreement because of uncertainty about subsequent award coverage.

[2] Central to the issues considered by Altus is its contention that its predominantly casual workforce is covered by a range of modern awards, depending on the nature of the traffic management work undertaken.

[3] On 20 November 2013 Altus provided written advice to the Fair Work Commission (the Commission) and to the Construction, Forestry, Mining and Energy Union (CFMEU), as the sole employee bargaining representative. This advice confirmed that Altus was not prepared to provide the proposed undertakings such that the requirements of the "better off overall test" were met with respect to the Building and Construction General On-site Award 2010. Altus advised that this was due to commercial and fiscal constraints given the various industry sectors in which it operated.

[4] The Altus advice continued, to state:

“For these reasons, we propose to amend the current application before the Commission. We propose an amendment which identifies the Miscellaneous Award 2010 as the reference instrument for the purposes of the BOOT, to the exclusion of all civil construction and construction related activities (which would have coverage under the BCGOA). This would allow the Agreement to be assessed against the terms of the Miscellaneous Award 2010 with an anticipated positive result; furthermore, it would provide Altus Traffic and the CFMEU the opportunity to negotiate a second enterprise agreement specific to works performed in the civil construction and construction industry.”

[5] Altus indicated that this proposal would allow the matter to be resolved, that it would improve on the current agreement conditions and provide employees with certainty about entitlements.

[6] This matter was the subject of a hearing on 25 November. Mr Whyte and Ms Marriott appeared for Altus and Mr Maxwell appeared for the CFMEU.

[7] I note the CFMEU opposed the Altus proposal.

[8] This decision confirms my advice to the parties at this hearing to the effect that I am not prepared to accept the Altus proposal. I am concerned, firstly, that the proposal is inherently unclear.

[9] Section 190 states:

“190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under section 185; and

(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWC must seek views of bargaining representatives

(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.

Signature requirements

(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”

[10] To the extent that the Altus correspondence is taken to be a proposed amendment of the agreement, I consider the only mechanism possibly available to achieve this without repeating the agreement making process is through an undertaking.

[11] To the extent that the Altus advice represents an undertaking, it fundamentally changes the scope of the agreement in a manner which represents a substantial change to the agreement that requires employee endorsement. Secondly, to the extent that the proposed undertaking could be read as excising from the agreement, employees covered by the Building and Construction Industry General On-site Award 2010, this could mean that employees engaged on work which would be covered by that award may still be covered by the existing agreement and hence be significantly disadvantaged by that undertaking.

[12] To the extent that the proposed undertaking may be taken as simply specifying the modern award applicable for the purposes of the "better off overall test", I do not consider that is the function of an undertaking pursuant to s.190 of the FW Act.

[13] Accordingly, the application for approval of the Altus Traffic (SA) Enterprise Agreement 2013 is refused.

[14] As I indicated at the hearing on 25 November 2013, the parties may elect to seek the assistance of the Commission through a s.240 application so as to explore alternative agreement making options. One such option may involve standard core provisions with separate elements of the agreement applicable to work of specified types.

Appearances:

G Whyte, A Marriott for Altus Traffic Pty Ltd.

S Maxwell for the Construction, Forestry, Mining and Energy Union.

Hearing details:

2013.

Adelaide (by telephone):

November 25.

 1   [2013] FWC 8711

 2   Badman v Altus Traffic Pty Ltd, [2013] FWC 4409

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