Baker Group T/A Bakers Landscape Supplies Pty Ltd
[2024] FWCA 3265
•16 SEPTEMBER 2024
| [2024] FWCA 3265 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Baker Group T/A Bakers Landscape Supplies Pty Ltd
(AG2024/2970)
BAKER GROUP TRADING AS BAKERS LANDSCAPE SUPPLIES PTY LTD ENTERPRISE AGREEMENT 2024 - 2028
| Bulk haulage and civil construction industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 16 SEPTEMBER 2024 |
Application for approval of the BAKER GROUP Trading as BAKERS LANDSCAPE SUPPLIES PTY LTD ENTERPRISE AGREEMENT 2024 - 2028
Introduction
Baker Group trading as Bakers Landscape Supplies Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the BAKER GROUP Trading as BAKERS LANDSCAPE SUPPLIES PTY LTD ENTERPRISE AGREEMENT 2024 - 2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Notice of Employee Representational Rights (NERR)
The agreement title on the NERR was ‘Baker Group Trading As Bakers Landscape Supplies Pty Ltd’ Collective Workplace Agreement 2020’ however the Agreement title in clause 1.1 is ‘Baker Group Trading As Bakers Landscapes Supplies Pty Ltd Enterprise Agreement 2024 - 2028.’ The Employer provided submissions that this matter constituted a minor technical error.
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 these matters constituted minor technical or procedural errors for the purposes of s.188(5)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
Below Award Rates of Pay
The Agreement applies to employees working in classifications covered by the Building and Construction General On-site Award 2020 (Building and Construction Award), the Road Transport and Distribution Award 2020 (Road Transport Award) and the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award).
All of the rates of pay in the Agreement are lower that than the rates of pay in the relevant Award. It was necessary for the Employer to provide and revise undertakings on three occasions before the Commission could be satisfied that the rates of pay in the Agreement are more favourable than the relevant Award. In my view this shows that the Employer is either unaware of the relevant minimum Award rates of pay or reluctant to apply these rates which is very concerning. If the relevant Award rates increase during the life of the Agreement, there is a risk that employees could be underpaid if the Employer is not vigilant in ensuring that its employees are paid at least the minimum Award rates of pay as required by s. 206 of the FW Act. I recommend that the Employer proactively monitor changes to Award rates of pay to ensure that it is meeting its obligations to properly pay its employees throughout the life of the Agreement.
Part-Time Employees
The Commission raised a concern with the Employer that the Agreement is silent about part-time employment conditions and entitlements. This may present as a concern for future employees who may be engaged as part-time employees as there are no conditions or entitlements relevant to their employment under the Agreement. The Employer submitted that it does not recruit part-time employees. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ part-time employees during the life of this Agreement.
Section 190 Undertakings
In addition to the issued raised above about part-time employees and below Award rates of pay, the Commission identified the following matters where the Agreement provided a less favourable entitlement compared to the relevant Award or the National Employment Standards:
Clause 17.3 of the Agreement provides a definition of ‘shiftworker’ which may not comply with s. 196(2) of the Act.
The entitlement to compassionate leave provided by clause 25.2 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household pursuant to s. 105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage pursuant to s. 105(1)(c) of the Act.
Clause 16 of the Building and Construction Award provides for a span of hours between 7.00am to 6.00pm which by agreement can commence earlier at 6.00am. Clause 8 of the Agreement provides for a span of hours between 5.00am to 5.00pm
Clause 30 of the Building and Construction Award provides that employees are entitled to 200% when working on Saturdays after 12 noon. Clause 9 of the Agreement provides that employees are entitled to 150% for the first 2 hours and 200% thereafter when working on Saturdays.
Clause 12 of the Building and Construction Award, clause 11 of the Road Transport Award and clause 11 of the Manufacturing Award provide for a casual minimum engagement of 4 hours. The Agreement is silent in relation to this entitlement.
Clause 17.2 of the Building and Construction Award provides for an afternoon shift penalty of 115%, clause 22 of the Road Transport Award provides for an afternoon shift of 117.5% and clause 33.2 of the Manufacturing Award provides for an afternoon shift penalty of 115%. Further, all respective awards provide for a penalty for less than 5 successive afternoon or night shifts, with differing penalties. The Agreement appears to be silent in relation to both of these additional penalties and also provides for a night shift with a definition which differs when compared against all Awards.
Clause 31.2 of the Building and Construction Award, clause 24.4 of the Road Transport Award and clause 34.4 of the Manufacturing Award all provide for an annual leave loading of 17.5% or the shift loading/weekend penalty, whichever is higher. The Agreement is silent in relation to this entitlement.
Clause 30 of the Building and Construction Award, clause 23.2 of the Road Transport Award and clause 33 of the Manufacturing Award provide for public holiday minimum engagement hours. The Agreement is silent in relation to this entitlement.
Clause 30 of the Building and Construction Award and clause 23 of the Road Transport Award provide for minimum engagements when working Saturday and Sundays. The Agreement is silent in relation to this entitlement.
In relation to overtime rates paid on Saturday, the Employer submitted that all work on a Saturday commences at 6am, so any employees working after 12 noon are paid 200% as they work more than two hours prior to 12 noon. I am therefore satisfied that it is reasonably foreseeable that employees covered by the Agreement will commence work on a Saturday at 6am.
In relation to the other matters raised, the Employer provided written undertakings. A copy of the undertakings is attached in Appendix C. 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 23 September 2024. The nominal expiry date of the Agreement is 16 September 2028.
DEPUTY PRESIDENT
[1] [2019] FWCFB 318.
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