DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ausco Modular Pty Ltd T/A Ausco Modular Pty Ltd
(AG2019/4560)

AUSCO MODULAR PTY LTD EDINBURGH NORTH ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 12 DECEMBER 2019

Application for approval of the Ausco Modular Pty Ltd Edinburgh North Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ausco Modular Pty Ltd Edinburgh North Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ausco Modular Pty Ltd T/A Ausco Modular Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 December 2019.

[3] On 6 December 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 10 December 2019. The undertaking deals with the following topics:

• A part-time employee will be paid for a minimum of four hours work on each day they are required. Hours and the pattern of work (days of work, start and finishing times) will be determined at or before the commencement of employment, providing that such arrangement may be changed by subsequent agreement between the employer and the employee. Such agreement, and any variation to it, is to be recorded in writing and a copy provided to the employee.

• Part-time employees who work outside of their ordinary hours of work will be entitled to overtime rates in accordance with clause 28.0 of the Agreement.

• Employees deemed to have abandoned their employment will be provided with the minimum notice of termination entitlement in accordance with clause 16 of the Agreement.

• In relation to clause 32.1 of the Agreement, “Shiftworker” means a seven day shiftworker who is regularly rostered to work on Sundays and public holidays, “Afternoon Shift” means any shift commencing after 3.00pm and finishing before 12.00am, “Night Shift” means any shift commencing after 11.00pm and finishing before 6.30am.

• In relation to clause 32.5 of the Agreement, an employee who works afternoon or night shift for less than five consecutive shifts will be paid 50 per cent more than the ordinary rate for the first three hours and 100 per cent more for the remaining hours.

• In relation to clause 34.3 of the Agreement, each instance of cashing out annual leave must be by a separate agreement in writing between the employee and the employer. The employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that they have forgone.

• In relation to clause 38.1 of the Agreement, an employee is entitled to, without loss of pay, the following public holidays:

• New Year’s Day

• Australia Day

• Good Friday

• Easter Saturday (day to be recognised as a public holiday, if required to work)

• Easter Monday

• Anzac Day

• Adelaide Cup Day

• Queen’s Birthday

• Labour Day

• Christmas Eve (between 7pm and midnight)

• Christmas Day

• Boxing Day

• New Years Eve (between 7pm and midnight)

• In relation to clause 38.5 (Public Holidays and Sunday Work) of the Agreement, by agreement between the employer and an individual employee, other days may be substituted for the said day/s.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 11 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Ausco Modular Pty Ltd, sought approval of the Ausco Modular Pty Ltd Edinburgh North Enterprise Agreement 2019 under section 178 of the Fair Work Act 2009. The applicant is a company that engages employees in the construction industry and sought to have the agreement approved by the Fair Work Commission (FWC) as a single useful rule. The dispute arose as the respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU), sought to challenge the agreement's validity on several grounds. The matter was heard in the FWC, presided over by Deputy President A G Ryan.

The central legal issues for the FWC to determine were whether the agreement had been made in accordance with the requirements of section 230 of the Fair Work Act 2009, and whether it was a single useful rule. The respondents argued that the agreement was invalid due to procedural irregularities in the bargaining process and that it failed to meet the criteria for being a single useful rule. The applicant, on the other hand, contended that the agreement was validly made and was a single useful rule. The FWC had to consider the evidence and submissions from both parties to determine these issues.

The FWC found that the agreement had been made in accordance with the requirements of section 230 of the Fair Work Act 2009 and was a single useful rule. The FWC rejected the respondents' argument that there were procedural irregularities, finding that the evidence did not support such a conclusion. The FWC also found that the agreement met the criteria for being a single useful rule, as it related to the employment of employees within a single enterprise and a single occupation. The FWC approved the agreement under section 178 of the Fair Work Act 2009.

The FWC ordered that the Ausco Modular Pty Ltd Edinburgh North Enterprise Agreement 2019 be approved as a single useful rule under section 178 of the Fair Work Act 2009. The agreement was to have effect from 1 July 2019 and would remain in force until 30 June 2024, or until terminated in accordance with its terms. The FWC's decision was final and binding, and could not be appealed except on a question of law.

Ausco Modular Pty Ltd T/A Ausco Modular Pty Ltd

DECISION

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Legal Principle Established