Bardrill Corporation Ltd

[2017] FWCA 5657

[2017] FWCA 5657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 185 - Application for approval of a single-enterprise agreement

Bardrill Corporation Ltd
(AG2017/2399)

BARDRILL CORPORATION LIMITED ENTERPRISE AGREEMENT NO.6 (2017)

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 31 OCTOBER 2017

Application for approval of the Bardrill Corporation Limited Enterprise Agreement No.6 (2017)

[1] An application (F16) was made to the Fair Work Commission (the Commission) on 19 June 2017 by Bardrill Corporation Limited (Bardrill) for approval of an enterprise agreement known as the Bardrill Corporation Limited Enterprise Agreement No 6 2017 (the 2017 Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single-enterprise agreement. It is proposed to replace the Bardrill Corporation Limited Enterprise Agreement No 5 2012 (the 2012 Agreement) which passed its nominal expiry date on 18 April 2015.

[2] The application was accompanied by an Employers Statutory Declaration in Support (F17) by Mr Reid Patrick Toogood dated 19 June 2017. Mr Toogood is the employer’s Chief Executive Officer.

[3] The application was also accompanied by a Statutory Declarations of an Employee Representative (F18A) Mr Adam Lindsay Woods dated 20 June 2017. Mr Woods was the employee bargaining representative for the 2017 Agreement. Unlike the 2012 Agreement which covered the Australian Workers Union (AWU), no employee organisations were bargaining representatives for the 2017 Agreement or covered by the Agreement.

[4] The statutory declarations of both Mr Toogood and Mr Woods support approval of the Agreement.

[5] Bardrill operates a civil construction business as a contractor to the oil and gas industry in regional and remote Australia. The 2017 Agreement is intended to replace the 2012 Agreement (as varied). It is intended to cover “all operational staff working in the Cooper Basin (South Australia), Eromanga Basin (Queensland) and Roma (Queensland) areas engaged in FIFO/DIDO rostered work”. 1 It does not apply to management, supervisory or administrative roles.

[6] The employees intended to be covered by the 2017 Agreement are currently covered by the 2012 Agreement, as varied by the Commission in January 2017. 2 That variation was made on the application of the employer and supported by the AWU. The variations made in January 2017 introduced a casual rate of pay, rescinded an Undertaking by the employer not to employ casuals and provided a new Undertaking concerning the employment of casuals. That new Undertaking was incorporated as a term of the varied Agreement. Other variations were made to clauses 12 (Individual Flexibility Agreement) and 15 (Rosters).

[7] The employer has indicated that the Building and Construction General Onsite Award 2010, a modern award made by the Commission, would cover the employees were it not for the continuing operation of the 2012 Agreement (as varied).

[8] The current application was initially allocated to Commissioner Lee. Between 23 August and 14 September administrative staff of the Commission, on behalf of Commissioner Lee, corresponded by email with the employer (and vice versa) on matters relevant to the application. This included certain matters concerning formalities needed to comply with legal provisions (such as signature requirements) as well as substantive matters, including the application of the Better Off Overall Test (BOOT).

[9] On 12 September 2017 the employer provided the Commission with an Undertaking concerning casual hourly rates of pay, the working of base hours, overtime payments for casual employees and the non-engagement of part time employees.

[10] By email dated 14 September, the employer was advised that Commissioner Lee held a preliminary view that he was unable to approve the Agreement “given several pay rates in the Agreement remain below the award and that the agreement is silent in regards to what overtime, weekend and public holiday penalties apply to casual employees”. 3

[11] In response, the employer indicated that it wished to make submissions to the Commission on the matter. 4 The matter was re-allocated to me for hearing in Adelaide.

[12] A hearing of the matter was conducted before me on 3 October. Mr Toogood appeared for the employer. Mr Woods appeared as the employee bargaining representative.

[13] Mr Toogood submitted that the Undertaking of 12 September provided the basis on which the Commission should be satisfied that the 2017 Agreement passes the BOOT test required by sections 186(2)(d) and 193 of the FW Act. He further submitted that the Undertakings should be accepted by the Commission under the FW Act and incorporated as a term of the Agreement.

[14] Mr Woods submitted that the Agreement should be approved on the basis that the wages and conditions of employment provided by the employer to the relevant employees were superior to those required under the Award.

[15] At the conclusion of the hearing I reserved my decision.

[16] Having regard to the fact that the AWU had been covered by the 2012 Agreement and had supported its variation in January 2017 but did not appear in the current proceedings and is not intended to be covered by the 2017 Agreement nor was it a bargaining representative for its negotiation, on 11 and 12 October I issued directions requiring Bardrill to formally serve its application on the AWU and for the AWU to be given access to the audio file of the proceedings on 3 October. I also directed that if the AWU intended to appear or make a submission on the application it should do so by 30 October.

[17] On 19 October lawyers for the AWU advised the Commission as follows:

“To the best of its knowledge and belief the AWU currently has no members employed by Bardrill. As such the AWU respectfully advises that it does not seek to be heard on the application for the approval of the agreement, and has no objection to the approval of said agreement provided the Commission is satisfied the agreement and undertaking provided by Bardrill pass the BOOT test.” 5

[18] In light of this intimation and that the date I directed for any written submissions from the AWU has passed, I now proceed to make a decision in this matter.

[19] On the basis of the submissions and material before me, including the Undertaking of 12 September 2017, I am satisfied that each of the matters requiring assessment for determining compliance with the provisions of the FW Act have been addressed by Bardrill save that I need to determine whether the 2017 Agreement passes the BOOT.

[20] In that respect, I am satisfied that the conditions of employment (other than wages) provided in the 2017 Agreement are equal to or superior than if the modern award applied. I note that Bardrill provides meal breaks and travel benefits to employees that are superior than the modern award. Specifically, it provides a paid (not unpaid) lunch break of 30 minutes to employees (including casuals) and provides two hours paid travelling time for each employee (including casuals) to and from work. These exceed the modern award benefits.

[21] I also note that the Undertaking of 12 September 2017 addresses an earlier concern raised with the employer relating to overtime payments for casual employees. The Undertaking given is that casual employees are paid overtime in accordance with clause 14.6 of the Building and Construction General Onsite Award 2010.

[22] In respect to wages, the wage rates provided for in the 2017 Agreement are equal to or superior than if the modern award applied except the following three hourly casual rates of pay:

● The Agreement E3 rate of $30.04 per hour is 0.05 (five cents) less than the equivalent award rate (CW5 plus leading hand) of $30.09 per hour;
● The Agreement T1 rate of $28.59 per hour is 0.52 (fifty two cents) less than the equivalent award rate (CW5) of $29.11 per hour;
● The Agreement T2 rate of $29.33 per hour is 0.01 (one cent) less than the equivalent award rate (CW6) of $29.34 per hour.

[23] The issue before me is whether any person employed or likely to be employed as a casual employee in either the E3, T1 or T2 classifications would have the monetary value of the hourly rate underpayment compensated by the value of the additional remuneration paid by those aspects of the 2017 Agreement that provide superior benefits when compared to the award. I have given consideration to the table ‘Bardrill Casuals – Better Off Overall 12.09.17’ which accompanied the Undertaking, and heard submissions from both Mr Toogood and Mr Woods on the matter. That table specifies that, in a given week, a E3 casual would be $272.72 better off, a T1 $266.54 better off and a T2 $273.31 better off when taking into account remuneration paid for the paid lunch break and for travelling time. I am satisfied this would be the case for employees in these classifications and for prospective employees in these classifications. I take into account the intimation by the employer, supported by the employee bargaining representative, that working hours by casual employees are based on a largely stable and pre-determined roster given the remote locations at which they work.

[24] I also note the employer’s indication at the hearing of this matter that it does not currently employ any casual employees in the T1 or T2 classifications.

[25] Consequently, I accept the Undertaking pursuant to section 190(3) of the FW Act. I am satisfied that the effect of accepting the Undertaking is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[26] As a result, the Undertaking is taken to be a term of the Agreement.

[27] Subject to the Undertaking, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In particular, I consider that the Undertaking together with an analysis of the Agreement, the award and the explanations provided by the employer and the employee bargaining representative appropriately deal with concerns the Commission held about whether the Agreement meets the better off overall test. The Agreement passes the better off overall test (section 193 of the FW Act) as required by section 186(2)(d) of the Act.

[28] The Agreement is approved. In accordance with section 54 of the Act it will operate at least seven days after the Agreement is approved, that is, from the first full pay period on or after 12.01am 7 November 2017. Having regard to clause 8 of the Agreement, the nominal expiry date of the Agreement is the first full pay period on or after 12.01am 7 November 2019.

DEPUTY PRESIDENT

 1   Employers Statutory Declaration paragraph 2.2

 2   [2017] FWCA 299 per Commissioner Platt, 13 January 2017

 3   Email Member Assist to Reid Toogood 14 September 2017 3.48pm

 4   Email Reid Toogood to Member Assist 14 September 2017 5.37pm

 5   Email Lieschke & Weatherill Lawyers to Chambers Anderson DP 19 October 2017 9.35am

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