Aurora Construction Materials (Epping) Pty Ltd

[2018] FWCA 937

[2018] FWCA 937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aurora Construction Materials (Epping) Pty Ltd
(AG2017/2358)

AURORA CONSTRUCTION MATERIALS AGREEMENT 2017 - 2021.

Quarrying industry
COMMISSIONER GREGORY	MELBOURNE, 12 FEBRUARY 2018

Application for approval of the Aurora Construction Materials Agreement 2017 – 2021.

[1] An application has been made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) for approval of a single enterprise agreement known as the Aurora Construction Materials Agreement 2017 – 2021 (“the Agreement”). It is made by Aurora Construction Materials (Epping) Pty Ltd.

[2] After reviewing the F16 Application and the F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought further clarification from the Applicant about various matters. The Applicant has, in response, provided some additional undertakings. I am satisfied that these undertakings will not result in financial detriment for any employee to be covered by the Agreement, or make substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement in accordance with s.191 of the Act. The undertakings, set out in a letter dated 27 July 2017, are attached to this decision.

[3] It is also noted that the Consultation Term in clause 16 does not comply with the existing statutory requirements as it does not make specific reference to “a change to their regular roster or ordinary hours of work.” 1 Therefore, in accordance with s.205(2) of the Act the model consultation term in the Fair Work Regulations 2009 (Cth) is instead taken to be a term of the Agreement.

[4] The Applicant has also advised that the Agreement provided to the Commission when the application was lodged contains some incorrect references. It has therefore requested that the Commission make some amendments to the Agreement based on the discretion available under s.586 of the Act. The Australian Workers’ Union, who were a Union bargaining representative for the Agreement, have confirmed they have no objection to the amendments proposed. The Applicant has also provided correspondence signed by each employee to be covered by the Agreement indicating they approve of the amendments, particularly as they apply to the date of the first wage increase to apply under the Agreement.

[5] Section 586 “Correcting and amending applications and documents etc.” states:

“The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.” 2

[6] The terms of the Agreement that are sought to be amended are as follows:

•  Sub clause 12.2 – the reference to 1/07/2016 is to be amended to refer instead to 1/0 7/2017.

•  The paragraph that follows the wage table set out in sub clause 12.2 is to be amended to add the following words, “or the FWC minimum wage order decision, whichever is the greater.” The paragraph should now read, “In years two, three and four of this Agreement the remuneration shall be increased by the annual percentage shown in the June Quarter to June Quarter CPI Melbourne All Groups for the previous year or the FWC minimum wage order decision, whichever is greater.”

•  Sub clause 15(5) – this sub clause is to be amended to include the words “and/or arbitration” at the end of the sub clause. It should now read, “If the dispute is unable to be resolved at the workplace level, a party may refer the matter to Fair Work Australia for assistance through mediation, conciliation and/or arbitration.”

[7] The Applicant has also provided a revised Agreement incorporating the amendments sought to be made under s.586. I am satisfied, in response, that the amendments simply involve minor omissions or drafting errors and, if made, will enable the Agreement to be read as originally intended. I am also satisfied that they do not in any way act to change the intent or substance of the Agreement that was voted on and approved by a majority of the employees to be covered. I am therefore satisfied that it is appropriate to exercise the discretion in s.586 to make the amendments detailed above. The Agreement that is published in conjunction with this decision contains these amendments.

[8] The Australian Workers’ Union – Victorian Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[9] Subject to the undertakings referred to above I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 February 2018.The nominal expiry date of the Agreement is 18 February 2020.

COMMISSIONER

<AE427320  PR600358>

Attachment A

 1   Fair Work Act 2009 (Cth) s 205(1)(a)(ii).

 2   Fair Work Act 2009 (Cth) s 586.

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