AUSSCON Pty Ltd
[2025] FWCA 132
•14 JANUARY 2025
| [2025] FWCA 132 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
AUSSCON Pty Ltd
(AG2024/4994)
AUSSCON – SPC JV ENTERPRISE AGREEMENT 2024
| Civil construction industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 14 JANUARY 2025 |
Application for approval of the AUSSCON – SPC JV Enterprise Agreement 2024
Introduction
AUSSCON Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AUSSCON – SPC JV Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Building and Construction General On-Site Award 2020 (the Award).
Sufficient Interest and Sufficiently Representative
Section 188(2) of the Act provides:
The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
(a) have a sufficient interest in the terms of the agreement; and
(b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.
Principle 17 of the Statement of Principle on Genuine Agreement (the Statement) sets out a number of matters which the Commission is required to take into account when considering whether employees have a sufficient interest in the terms of an enterprise agreement and whether the employees are sufficiently representative which include the extent to which employees are entitled to vote on the enterprise agreement are employed across the full range of classifications in the agreement and types of employment in the agreement.
The Agreement applies to employees of the Employer engaged in the following classifications which align to the same classifications in the Award:
CW1
CW2
CW3
CW4
CW5
CW6
CW7
CW8
At the time of the making of the Agreement, the Employer had two employees who were respectively employed in the CW1 and CW2 classifications.
The Employer provided the following submissions in relation to this issue:
The Agreement provides for classifications levels CW1 and CW2
Employees entitled to vote on the agreement are employed across the full range of these classifications in the Agreement
Employees entitled to vote on the Agreement are paid in accordance with the rates of pay provided for in the Agreement
Employees entitled to vote on the Agreement are employed across the types of employment set out in the Agreement
With regard to the employees the Agreement is expressed to cover, the employees who have voted for the Agreement have a sufficient stake and are sufficiently representative
Any additional and newly appointed staff will be engaged at either level CW1 or CW2 per the terms of the Agreement
If it becomes necessary during the life of the Agreement to create additional classifications including to engage new staff, then the Agreement will be subject to variation pursuant to s 207 of the Act.
The Employer provided an undertaking that it would apply only the level CW1 and CW2 wage tables of the Agreement. Based on the submissions and the undertaking, I am satisfied that the employees requested to approve the agreement by voting for it have a sufficient interest in the terms of the Agreement and are sufficiently representative.
Notice of Employee Representational Rights (NERR) Coverage
The NERR coverage listed two employees by their own personal name. However, the coverage clause in the Agreement which is provided at clause 2(a) covers ‘employees of the company employed under the classification structure specified in appendix A’. The Employer provided submissions to address this issue.
I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
Notice of Employee Representational Rights (NERR) Timeframes
The application form provided for the dates of the notification time and the date the NERR was issued which appeared inconsistent with ss. 173 and 181 of the Act. The Employer provided an amended Form F17B to correct the errors in relation to the dates that were provided.
I consider it appropriate in the circumstances to allow a correction of a document relating to a matter before the Commission and do so pursuant to s.586(a) of the Act and that the requirements in ss. 173 and 181(1) of the Act have been met.
Agreement Explanation
In its application, the Employer did not provide an explanation regarding what steps were taken to explain the terms of the Agreement. The Employer provided submissions to address this issue. I am satisfied having regard to those submissions that the requirements of s.180(5) of the Act have been met.
Dispute Resolution Term
The Agreement does not contain all of the requisite dispute resolution terms, as required by s. 186(6) of the Act. The model dispute term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model dispute term can be found in Appendix 5 of the Agreement.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Appendix 6.
Test Time Rates
The Agreement has not provided test time rates. Section 193 of the Act requires the Commission to assess the Better off Overall Test (BOOT) at test time. The Employer provided submissions to address this issue.
Casual Minimum Engagement
Clause 8.3 of the Agreement provides that a minimum of four hours shall be paid per engagement Sunday to Friday and on the Saturday following Good Friday and a minimum of three hours work on a Saturday must be afforded to casuals. Under clause 12.3 of the Award, casuals receive a minimum payment of 4 hours per engagement. This may present a BOOT concern for casuals working 3 hours on a Saturday in isolation. The Employer provided an undertaking to address this issue.
Casual Overtime
Clause 8.3 of the Agreement provides that where the relevant overtime rate is time and a half, a casual employee's overtime rate shall be paid at 150% of the casual hourly rate prescribed in Appendix 1; and where the relevant overtime rate is double time, a casual employee's overtime shall be paid at 200% of the casual rate prescribed in Appendix 1. However, Appendix 1 provides for all purpose ordinary hourly rates, not casual rates. Clause 8.3 of the Agreement also provides that a casual employee shall be paid an hourly rate no less than that listed in Appendix 1, plus a 25% casual loading.
I note that clause 15.1(b) of the Agreement provides that overtime is paid at 150% for the first 2 hours and 200% thereafter whereas casuals will be paid 175%. As such, it is unclear whether casuals receive a penalty of 225% after the first 2 hours of overtime. I further note that Clause 15.1(c) does not specify whether the casual loading applies on a cumulative basis to overtime on a Saturday.
Clause 8.3 and 15.1 of the Agreement appeared to be inconsistent and as such the interaction between the casual loading and overtime penalties is unclear. The Employer provided an undertaking to address this issue.
Section 190 Undertakings
The employer provided written undertakings. A copy of the undertakings is attached in Appendix 4. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2025. The nominal expiry date of the Agreement is 1 June 2026.
DEPUTY PRESIDENT
[1] [2019] FWCFB 318.
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