Altus Traffic Pty Ltd

[2013] FWC 8711

[2013] FWC 8711

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, 6 NOVEMBER 2013

Application for approval of the Altus Traffic (SA) Enterprise Agreement 2013 - better off overall test.

[1] On 4 September 2013 Altus Traffic Pty Ltd (Altus) lodged an application for approval of the Altus Traffic (SA) Enterprise Agreement 2013 (the Agreement). The application identified the Construction, Forestry, Mining and Energy Union (CFMEU) as the only employee bargaining representative.

[2] On 6 September 2013 the CFMEU requested that a hearing be conducted with respect to the application. At that hearing, on 17 September 2013, Mr Whyte appeared for Altus and Mr Maxwell appeared for the CFMEU. Mr Maxwell detailed a range of matters which he asserted individually and collectively prevented the approval of the Agreement in that it did not meet the requirements of the better off overall test. Mr Maxwell acknowledged that a number of the CFMEU concerns were arguable whilst others might be addressed by the provision of undertakings.

[3] This hearing concluded on the basis that I established a timeframe within which Altus could consider its position and the parties could confer about the CFMEU concerns.

[4] At a further hearing on 8 October 2013 both Altus and the CFMEU made submissions about the matters about which they had agreed, and the matters where they remained in dispute. In this decision I have addressed the matters raised in these proceedings.

[5] I note by way of background that Altus and the CFMEU have had previous differences related to the applicable modern award for the purposes of the "better off overall test" (the BOOT). In this respect, I particularly refer to my decision in Badman v Altus Traffic Management Pty Ltd. 1 In that matter I declined to terminate a pre-existing agreement because of concern over which industrial instrument would then apply.

[6] In the current application Altus advised in its Employers Declaration (Form F17) that the Building and Construction General On-site Award 2010 (the Award) has application to the employees to be covered by the Agreement.

[7] There is no dispute that the Agreement was reached through a process consistent with that set out in Divisions 3 and 4 of Part 2-4 of the Fair Work Act 2009 (the FW Act). However, in its correspondence to me of 14 October 2013, Altus states:

“Altus Traffic proposes to make several undertakings to resolve matters which may assist in the approval of the Altus Traffic (SA) Agreement 2013. As many of the points raised by the CFMEU relate specifically to work conducted in the Civil Construction industry; whereby the Building and Construction General On-Site Award is the reference instrument, many of the undertakings will be specific to Civil Construction work.”

[8] In considering the Agreement application I have had regard to the advice in the Employers Declaration that 117 of the 118 employees to be covered by the Agreement are casual employees. I have understood from this that these employees may be required to work across the range of traffic management functions undertaken by Altus. On 14 October 2013 Altus advised:

“Composition of Work

Altus traffic operates in several sectors, providing ongoing and short term services dependent upon requirements. The table below outlines work comprised in each sector:

Sector	- percentage of work
Civil construction	30
Utilities (Gas, Electricity, Telco)	30
Roadway Augmentation/Repair	20
Event Management	15
Other	5

As such it is likely that several Modern Awards provide coverage for the type of work completed by Altus. The nomination of the Building and Construction General On-Site Award as a reference instrument is as a result of the prevalence of Civil Construction in the current work profile.”

[9] This information has not been challenged. As a consequence, I have concluded that Altus employees commonly undertake work which would be covered by a range of modern award provisions. I have had regard to this in reaching a conclusion about the approval application.

[10] I have also had regard to the extent to which the Agreement establishes benefits which are, in many respects, very close to the Award provisions such that there is minimal capacity to absorb deficiencies in the BOOT through consideration of other Agreement benefits.

[11] The issues in dispute here go to whether the Agreement meets the requirements of the BOOT and the requirements necessary for approval.

Clause 9

[12] This clause relates to casual employees. Altus has provided an undertaking in the following terms:

“Altus traffic will provide all employees with written confirmation of their mode of employment upon commencement with the company.”

[13] The CFMEU has withdrawn its objection to the Agreement clause on the basis of this undertaking and has also withdrawn an earlier objection to the Agreement casual conversion arrangement.

[14] I am satisfied that the clause, when read in conjunction with the undertaking, does not represent a disadvantage to employees.

Clause 12

[15] This clause relates to the First Aid Allowance. Altus has provided an undertaking in the following terms:

“Altus traffic will provide nominated first aid officers with payment of $2.61 and $4.13 daily dependent upon the qualification the employee holds for the period they are nominated First Aid Officer.”

[16] The CFMEU has accepted this undertaking and has withdrawn the objection it previously held relative to this clause.

[17] I am satisfied that the clause, when read in conjunction with the undertaking, does not represent an impediment to approval of the Agreement.

Clause 13

[18] This clause relates to the payment of wages. Altus has provided an undertaking in the following terms:

“Altus traffic will attempt to make payment of any outstanding wages and entitlements upon termination within 2 business days of notification of cessation. Should the employer be unable to achieve this, the employee will receive payment as part of the next available payment date.”

[19] The CFMEU has accepted this undertaking and has withdrawn the objection it previously held relative to this claim.

[20] I am satisfied that this clause, when read in conjunction with the undertaking, does not represent an impediment to approval of the Agreement.

Clause 32

[21] This clause deals with superannuation obligations. It states:

“32.1 The Company will make superannuation contributions on each Employee’s behalf in accordance with its legislative obligations.

32.2 Within twenty-eight (28) days of commencing employment, each Employee will be given a standard choice form by the Company, under which the Employee can nominate an eligible superannuation fund to which contributions will be made.

32.3 Where an Employee does not choose a superannuation fund within twenty-eight (28) days, their superannuation contributions will automatically be paid into the Company’s default fund, the TMAQ Fund.

32.4 All superannuation contributions will be paid monthly or quarterly as required by the relevant Fund’s trust deed and/or applicable legislation.

32.5 Where an Employee wishes to have their pay salary sacrificed for additional superannuation, the Company will comply with the Employee’s request without unreasonable delay. All entitlements and benefits contained in this Agreement will be calculated on the rate of pay prior to salary sacrificing.

32.6 Superannuation contributions are calculated and payable on the basis of ordinary hours worked only.”

[22] Altus has proposed the following undertaking:

“Altus traffic will make contributions to Superannuation in line with legislated requirements with regard to the quantum and application of payments.”

[23] The CFMEU asserts that this undertaking does not adequately address the provisions of clause 32.5 of the Award. That clause states:

“32.5 Absence from work

Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 32.1(a) and pay the amount authorised under clauses 32.3(a) or (b):

(a) Paid leave—while the employee is on any paid leave;

(b) Work-related injury or illness—for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work-related injury or work-related illness provided that:

(i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements; and

(ii) the employee remains employed by the employer.”

[24] To the extent that the CFMEU objection is based on the nomination of the TMAQ Fund as the default superannuation fund, I am unable to regard this as an impediment to the approval of the Agreement. It seems to me that employee’s approval of the Agreement must be seen as endorsement of that fund as the default fund in a manner consistent with the Award choice provisions.

[25] To the extent that the CFMEU objection is based on concerns about how superannuation payments should be calculated, the Award provisions exceed the legislation obligation with respect to absences on workers compensation. To this extent the Agreement is deficient such that a more substantial undertaking relative to superannuation payments for employees on paid leave is required.

Appendix A

[26] This Appendix establishes classifications and wage rates applicable under the Agreement.

[27] Altus has proposed the following undertaking:

“Altus traffic will adjust wage rates to be reflective of the table below:

Altus Traffic Classification	PFT/PPT Ordinary Rate	Casual Ordinary Rate	PFT/PPT Night Rate	Casual Night Rate	PFT/PPT Time and a Half Rate	Casual Time and a Half Rate	PFT/PPT Double Rate	Casual Double Rate	PFT/PPT Public Holiday Rate	Casual Public Holiday Rate
Relativity to PFT/PPT Ordinary Rate	100%	125.00%	130.00%	155.00%	150.00%	175.00%	200.00%	225.00%	250.00%	275.00%
New Entrant	$18.12	$22.65	$23.56	$28.09	$27.18	$31.71	$36.24	$40.70	$45.30	$49.83
TC1	$19.43	$24.29	$25.26	$30.12	$29.15	$34.00	$38.86	$43.72	$48.58	$53.43
TC2	$20.04	$25.05	$26.05	$31.06	$30.06	$35.07	$40.08	$45.09	$50.10	$55.11
TC3	$20.88	$26.10	$27.14	$32.36	$31.32	$36.54	$41.76	$46.98	$52.20	$57.42

Should an employee classified as a TC2 be nominated as a team leader of greater than 2 employees the following allowance will be paid hourly for each nominated shift, dependent upon the number of employees being led.

2-5 Employees	6-10 Employees	10+ Employees
$0.38	$0.64	$1.06

[28] The CFMEU position is that:

“Re Appendix A - Save for the issue of New Entrant which is discussed below the wage rates would be acceptable with the additional undertaking that the casual loading would be applied to the leading hand allowance (for casuals) and that a TC3 would receive an allowance of 22c per hour for 10+ employees.”

....

Re Progression of New Entrants to TC1 - The CFMEU does not accept the position of the company on new entrants. The definition of new entrants based on construction industry experience is clear and unambiguous under Schedule B of the award. The rates under the agreement for new entrants are less than the award for employees with more than 3 months construction industry experience. Further an employee required to act on a traffic control certificate/competence should be paid at least the CW2 rate under the award. The views of the employee bargaining representatives during the negotiations are irrelevant for the assessment under the BOOT test.”

[29] There are a number of issues which require consideration relative to Appendix A. Firstly, in terms of the New Entrant wage rate, the Agreement defines this classification in the following terms:

“A1.1(a) New Entrant

A New Entrant is an employee who commences with Altus Traffic and/or a new entrant to the traffic management industry. A New Entrant:

i. Works efficiently under general guidance;

ii. Has completed a relevant training programme as a traffic controller;

iii. Will be subject to an initial period of training and induction of three months’ full-time equivalent hours;

iv. Treats company with diligence and respect;

v. Demonstrates an ability to work in a safe and efficient manner and completes a safety audit to the satisfaction of the Company.

A New Entrant may be progressed to the next level (TC1) of this classification structure by Altus Traffic when the employee demonstrates that they meet the relevant competency requirements, as determined by the Company.

The Company’s decision in this regard is final and is at the Company’s absolute discretion.”

[30] Consequently, there exists the capacity for an employee classified as a New Entrant to be employed in this classification for in excess of three months. In this event, the wage rates applicable under the Agreement for that classification are less than those prescribed in the Award when employees undertake work that would otherwise be covered by that Award. The amount involved is marginal relative to the CW1(b) classification but may increase if the CW1(c) classification takes effect. Accordingly, absent an undertaking which satisfactorily addresses this issue, the Agreement does not meet the requirements of the BOOT. The undertaking may address the wage rate or the duration of engagement in the ‘New Entrant’ classification.

[31] Secondly, the Award classification definition for the CW2 classification states:

“B.2.2 Construction worker level 2/Engineering construction worker level 2 (CW/ECW 2)

(a) A CW/ECW 2 works under limited supervision in one or more skill streams contained within this award. A CW/ECW 2 will:

(i) have completed in accordance with RPL principles a Construction Skills Test equivalent to the required competency standards; or

(ii) have completed relevant structured training equivalent to the required competency standards; or

(iii) successfully completed an Engineering Construction Industry Certificate Level 2 consisting of a total of 20 appropriate modules, or formally recognised equivalent accredited training so as to enable the employee to perform work within the scope of this level; or

(iv) obtained skills equivalent to the above gained through work experience subject to competency testing to the prescribed standard.

(b) Skills and duties

(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.

(ii) An employee at this level may be part of a self-directed WAT and may be responsible for the supervision of one or more employees working at CW/ECW 1 level.

(iii) An employee at this level:

• can interpret plans and drawings relevant to their functions;



• assists with the provision of on-the-job training;



• assumes responsibility for allocating tasks within a WAT within the area of the employee’s skill, competence and training;



• has some responsibility for the order and purchase of materials within defined parameters;



• is able to sequence functions relevant to the employee’s WAT;



• applies quality control techniques to the employee’s own work and other employees within the WAT;



• works from complex instructions and procedures;



• co-ordinates work in a team environment or works individually under general supervision;



• is responsible for assuring the quality of their work;



• works in a safe manner;



• exercises discretion within their level of training;



• understands the construction process in their sector and has a basic level of understanding of processes in other sectors;



• implements basic fault-finding and problem solving skills within the employee’s sphere of work;



• interacts harmoniously with employees of other companies on-site;



• anticipates and plans for changes to the work environment.

(c) Indicative tasks which an employee at this level may perform include the following:

• calculates safe loads and stress factors;



• measures accurately using specialised equipment;



• non-trades maintenance of relevant plant and equipment;



• anticipates and plans for constant changes to the work environment.



• materials handling;



• operates machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at CW/ECW 1 (level d);



• uses measuring and levelling instruments;



• performs basic quality checks on the work of others;



• oxy acetylene cutting.

(d) The CW/ECW 2 classification incorporates the following broadbanded award classifications:

• Aircon group 1



• Concrete batching plant operator



• Concrete finisher



• Employee operating power driven portable saw



• Forklift over 4500kg



• Foundation shaftsworker



• Geotextile/geomembrane worker level 2



• Hoist or winch driver



• Landscaper



• Manhole builder



• Pitcher or beacher



• Powder monkey



• Scaffolder



• Spotter



• Steelfixer



• Storeman



• Tack welder



• Tool sharpener



• Traffic controller



• Wall builder

(e) An employee at this level may be undergoing training so as to qualify as a CW/ECW 3.”

[32] The CFMEU position is that, under the Award, an employee required to act on a traffic control certificate or competency should be classified at the CW2 classification level. A basis upon which this assertion has been made has not been established to me such that it represents an impediment to approval of the Agreement.

[33] Thirdly, the CFMEU asserts that the casual loading should be applied to leading hand allowances in the case of casual employees. Clause 19.2(a) of the Award states:

“19.2 Leading hands

(a) A person specifically appointed to be a leading hand must be paid at the rate of the undermentioned percentages of the above weekly rates of the highest classification supervised, or the employee’s own rate, whichever is the higher in accordance with the number of persons in the employee’s charge.

In charge of:	% of the appropriate weekly rate per week
1 person	2.4
2 - 5 persons	5.3
6 - 10 persons	6.7
More than 10 persons	9.0

....”

[34] On the undertakings proposed by Altus with respect to leading hand payments, I am not satisfied that leading hand payments under the Agreement would fall short of the minimum Award leading hand payments so as to give rise to concerns about the BOOT.

[35] Finally, in terms Appendix A, the CFMEU asserts that the TC3 Agreement classification should receive an amount of $0.22 per hour where the employee is required to lead 10 or more employees. The Agreement defines this classification as:

“A1.1(d) TC3

A TC3 is an employee who is appointed to the role of TC3 by the Company. The Company’s discretion in engaging and/or appointing a TC3 is at the Company’s absolute discretion. A TC3:

i. Supervises Employees and ensures Employees are carrying out work as directed;

ii. Supervises Employees and ensures Employees are meeting the Company’s health and safety standards;

iii. Ensures Employees are correctly attired;

iv. Models the standards of competency and professionalism expected of the Company’s Employees;

v. Liaises with client company representatives;

vi. Treats company property with diligence and respect;

vii. Performs other duties as required by the Company.”

[36] Evidence to substantiate the CFMEU assertion that this classification must equate to a level higher than the CW1 classification in the Award has not been made out to me such that I am not satisfied, on the material before me that the Leading Hand rate for 10+ employees fails to meet the requirements of the BOOT.

[37] Altus provided a number of undertakings which were qualified subject to their being specific to work undertaken in the civil construction sector. I have taken it that this reflects agreement that the relevant modern award for this work is the Building and Construction General On-site Award 2010. These specific undertakings are addressed below.

[38] Clause 14.6(a) relates to breaks during ordinary work hours. The current clause states:

“Breaks during ordinary hours

a. An Employee is entitled to an unpaid meal break of thirty minutes after six hours of work.”

[39] Altus provided an undertaking in the following terms:

“Altus traffic will ensure employees conducting work in relation to the civil construction sector will be entitled to an unpaid meal break of thirty minutes after five hours of work.”

[40] Clause 14.6(b) relates to breaks during overtime. The current clause states:

“Breaks during overtime

b. An Employee will be entitled to a twenty minute paid break if the Employee is required to work more than 9.5 hours in any one day before starting overtime work (or alternatively payment for an additional twenty minutes at overtime rates).”

[41] Altus provided an undertaking in the following terms:

“Altus traffic will ensure employees conducting work in relation to the civil construction sector will receive payment of the ‘Overtime meal allowance’ after 9.1 hours work.”

[42] Clause 17 relates to distant work. This clause specifies accommodation, meal payments, an incidentals allowance and travelling arrangements.

[43] Altus provided an undertaking in the following terms:

“Altus traffic will provide reasonable Rest and Relaxation conditions to employees should they be allocated to perform away work for a period greater than 2 months on a civil construction project.”

[44] Clause 21 relates to annual leave. Altus provided an undertaking in the following terms:

“Altus traffic will ensure annual leave loading is paid in consideration of travel allowance in addition to other stipulated allowances where the employee performs a majority of their work in the civil construction sector.”

[45] I am satisfied that the Agreement provisions relative to clauses 14, 17 and 21, read in concert with these undertakings applicable to work in the civil construction sector, do not represent impediments to approval of the Agreement.

Shiftwork

[46] Altus and the CFMEU disagree about the extent to which the Agreement shiftwork provisions enable the Agreement to meet the requirements of the BOOT. In this respect I note that the Award 2 differentiates between work undertaken in the general building and construction and metal and engineering construction sectors as distinct from work undertaken in the civil construction sector.

[47] Clause 14.1 and 14.2 of the Agreement state:

“14 HOURS OF WORK, OVERTIME AND MEAL BREAKS

14.1 Hours of Work

(a) Employees may be required to work at any hour of the day or night on any day of the week, including weekends.

(b) The minimum engagement for each period of work will be four hours.

(c) The Company will endeavour to provide Employees with at least a ten hour break between each period of work;

(d) The parties acknowledge that, due to the nature of the Traffic Control Industry:

(i) Employees will usually only be notified on the previous day of the next day’s start and finish times; and

(ii) State and finish times may be varied with short notice.

14.2 Night Work

(a) An Employee may be engaged to perform night work (being work commencing after 6.00pm and finishing at or before 6.00am).

(b) Where a permanent Employee is working night work, the Employee will be paid a 30% loading on top of the ordinary rate of pay for their classification, for each ordinary hour of work.

(c) Where a casual Employee is working night work, the Employee will be paid a 30% loading on top of the ordinary rate of pay for their classification, for each ordinary hour of work, in addition to the casual loading of 25%.

(d) All hours in excess of 7.6 hours will be considered overtime, and paid in accordance with 14.3.”

[48] Additionally, clause 14 addresses overtime, weekend work payment of penalties and meal breaks. Clause 15 provides for a four-hour minimum period of engagement, the capacity for employees to be engaged to work two separate four-hour periods of work on any given day and from work to be cancelled at short notice.

[49] The CFMEU position is that:

“Re Clause 14.2(b) and (c) - the CFMEU does not accept that the shift allowances are superior to the Award. The shift allowances are not superior compared to the shift loadings for afternoon and night work for the general building and construction sector as set out in clause 34.1(a) of the award. Also the shift loadings are not superior for broken shifts and the overtime penalties are less than the award.”

[50] Altus asserts that the rates contained in the agreement are superior to those in the relevant terms of the Award.

[51] Clause 14 of the Award does not exclude casual employees from the application of the shift penalties set out in clause 34. To the extent that employees work under the Agreement on work which would otherwise be covered by clause 34.1 of the Award, I have concluded that the Agreement is deficient when shiftwork is either not worked for five continuous days or when work which would be defined as afternoon or night shift work under clause 34.1 is worked. This deficiency is such that, without an undertaking which addresses this issue, the Agreement cannot meet the requirements of the BOOT. I have not specified the exact nature of the undertaking required as there would appear to be a range of options open to Altus to address this issue.

[52] Clause 15 establishes the capacity for employees to be engaged to work two separate four-hour periods of work on any given day. The CFMEU position is that it would be "prepared to accept an undertaking that employees will receive payment of a travel allowance that both shifts in a split shift scenario". 3

[53] Altus has advised that it considers that clause 16.2 of the Agreement provides for an employee engaged to work on a split shift to receive payment of a travel allowance for both shifts. 4 Clause 16.2 states:

“16.2 For each shift start, an Employee will be entitled to payment of the relevant travel allowance.”

[54] I am satisfied that this provision does not represent an impediment to approval of the Agreement.

[55] The CFMEU also asserted that three other agreement provisions do not meet the minimum requirements set out in the Award. Notwithstanding that the advice provided by Altus on 7 October 2013 indicates that at least some of these issues were to be addressed through a further undertaking or where matters where the CFMEU no longer pressed its arguments, I have considered these issues.

[56] Clause 9.2 relates to permanent part-time employees and states:

“9.2 Permanent Part-time Employees

(a) A permanent part-time Employee is an Employee who is engaged on a permanent basis who works an average of fewer than 38 ordinary hours per week and has reasonably predictable hours of work.

(b) A permanent part-time Employee may also be asked to work reasonable additional hours / overtime.”

[57] On the material before me, I am not satisfied that this clause represent an impediment to approval of the Agreement.

[58] Clause 14.3 relates to overtime payments and states:

“14.3 Overtime

(a) An Employee is entitled to the payment of overtime as follows:

(i) All hours worked in excess of thirty-eight (3) per week; or

(ii) All hours worked in excess of 7.6 hours per day; or

(iii) All subsequent hours worked where an Employee does not receive a ten (10) hour break between periods of work (other than split shifts).

(b) Where a permanent Employee works overtime, the Employee will be paid at the rate of time and a half for the first two hours, and double time thereafter.

(c) Where a casual Employee works overtime, the Employee will be paid the casual loading of 25% in addition to the penalty rates prescribed by 14.3(b).”

[59] Again, on the material before me I am not satisfied that this clause represent an impediment to approval of the Agreement.

[60] Clause 31 relates to redundancy. This clause states:

“31 REDUNDANCY

31.1 An Employee is entitled to be paid redundancy pay by the Company if the Employee’s employment is terminated:

(a) at the Company’s initiative because the Company no longer requires the job done by the Employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the Company.

31.2 Permanent full-time and permanent part-time Employees are entitled to redundancy pay in accordance with the following:

Period of continuous service with Altus Traffic	Payment
One year or more but less than two years	2.4 weeks’ pay plus, for all service in excess of 1 year, 1.75 hours per completed week of service up to a maximum of 4.8 weeks’ pay.
Two years or more but less than three years	4.8 weeks’ pay plus, for all service in excess of 2 years, 1.6 hours pay per completed week of service up to a maximum of 7 weeks’ pay.
Three years or more but less than four years	7 weeks’ pay plus, for all service in excess of 3 years, 0.73 hours pay per completed week of service up to a maximum of 8 weeks’ pay.
Four years or more but less than five years	Eight weeks’ pay
Five years or more but less than six years	Ten weeks’ pay
Six years or more but less than seven years	Eleven weeks’ pay
Seven years or more but less than eight years	Thirteen weeks’ pay
Eight years or more but less than nine years	Fourteen weeks’ pay
Nine years or more but less than ten years	Sixteen weeks’ pay
Ten years	Twelve weeks’ pay

...”

[61] Clause 17 of the Award states:

“17. Industry specific redundancy scheme

17.1 The following redundancy clause for the on-site building, engineering and civil construction industry (as defined) is an industry specific redundancy scheme as defined in s.12 of the Act. In accordance with s.123(4)(b) of the Act the provisions of Subdivision B—Redundancy pay of Division 11 of the NES do not apply to employers and employees covered by this award.

17.2 Definition

For the purposes of this clause, redundancy means a situation where an employee ceases to be employed by an employer to whom this award applies, other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning.

17.3 Redundancy pay

(a) A redundant employee will receive redundancy/severance payments, calculated as follows, in respect of all continuous service with the employer:

Period of continuous service with an employer	Redundancy/severance pay
1 year or more but less than 2 years	2.4 weeks’ pay plus for all service in excess of 1 year, 1.75 hours pay per completed week of service up to a maximum of 4.8 weeks’ pay
2 years or more but less than 3 years	4.8 weeks’ pay plus, for all service in excess of 2 years, 1.6 hours pay per completed week of service up to a maximum of 7 weeks’ pay
3 years or more than but less than 4 years	7 weeks’ pay plus, for all service in excess of 3 years, 0.73 hours pay per completed week of service up to a maximum of 8 weeks’ pay
4 years or more	8 weeks’ pay

(b) Provided that an employee employed for less than 12 months will be entitled to a redundancy/severance payment of 1.75 hours per week of service if, and only if, redundancy is occasioned otherwise than by the employee.

(c) Week’s pay means the ordinary time hourly rate at the time of termination multiplied by 38. Hour’s pay means the ordinary time hourly rate at the time of termination.

(d) If an employee dies with a period of eligible service which would have entitled that employee to redundancy pay, such redundancy pay entitlement will be paid to the estate of the employee.

(e) Any period of service as a casual will not entitle an employee to accrue service in accordance with this clause for that period.

(f) Service as an apprentice will entitle an employee to accumulate credits towards the payment of a redundancy benefit in accordance with this clause if the employee completes an apprenticeship and remains in employment with that employer for a further 12 months.

17.4 Redundancy pay schemes

(a) An employer may offset an employee’s redundancy pay entitlement in whole or in part by contributions to a redundancy pay scheme.

(b) Provided that where the employment of an employee is terminated and:

(i) the employee receives a benefit from a redundancy pay scheme, the employee will only receive the difference between the redundancy pay in this clause and the amount of the redundancy pay scheme benefit the employee receives which is attributable to employer contributions. If the redundancy pay scheme benefit is greater than the amount payable under clause 17.3 then the employee will receive no redundancy payment under clause 17.3; or

(ii) the employee does not receive a benefit from a redundancy pay scheme, contributions made by an employer on behalf of an employee to the scheme will, to the extent of those contributions, be offset against the liability of the employer under clause 17.3, and payments to the employee will be made in accordance with the rules of the redundancy pay scheme fund or any agreement relating thereto. The employee will be entitled to the fund benefit or the award benefit whichever is greater but not both.

(c) The redundancy pay scheme must be an Approved Worker Entitlement Fund under the Fringe Benefits Tax Regulations 1992 (Cth).

17.5 Service as an employee for the Crown in the Right of the State of Western Australia, the Crown in the Right of the State of New South Wales, Victorian Statutory Authorities, or the Crown in the Right of the State of Victoria will not be counted as service for the purpose of this clause.

17.6 Employee leaving during notice period

An employee whose employment is to be terminated in accordance with this clause may terminate their employment during the period of notice and if this occurs, the employee will be entitled to the provisions of this clause as if the employee remains with the employer until expiry of such notice. Provided that in such circumstances, the employee will not be entitled to payment instead of notice.

17.7 Transfer of business

(a) Where a business is, before or after the date of this award, transferred from an employer (in this subclause called the old employer) to another employer (in this subclause called the new employer) and an employee who at the time of such transfer was an employee of the old employer in that business becomes an employee of the new employer:

(i) the continuity of the employment of the employee will be deemed not to have been broken by reason of such transfer; and

(ii) the period of employment which the employee has had with the old employer or any prior old employer will be deemed to be service of the employee with the new employer.

(b) In this subclause, business includes trade, process, business or occupation and includes part of any such business and transfer includes transfer, conveyance, assignment or succession whether by agreement or by operation of law. Transferred has a corresponding meaning.”

[62] This Award Redundancy provision does not apply to casual employees. I have noted that it substantially extends the traditional concept of redundancy so as to cover, in effect, most termination of employment situations. Accordingly, this Award provision may have application to the one weekly hire employee proposed to be covered by the Agreement. In this respect the Agreement would then fail to meet the requirements of the BOOT. An undertaking to address this situation would need to be provided.

Conclusion

[63] For the reasons set out in this decision I am unable to approve the Agreement on the basis of the information and undertakings provided to me at this time. Altus may elect to provide further undertakings dealing with the New Entrant classification wage rate, shift penalties, superannuation and redundancy payments. If undertakings in these respects are provided within seven days of this decision, I propose to approve the Agreement application.

[64] In the event that Altus do not provide undertakings which meet the requirements set out in this decision, the application will be refused for the reasons set out above.

Appearances:

G Whyte appearing for Altus Traffic Pty Ltd

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

Hearing details:

2013.

Adelaide:

September 17

October 8.

 1   [2013] FWC 4409

 2   Clause 34

 3   CFMEU correspondence of 16 October 2013

 4   Altus correspondence of 14 October 2013

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