Baulderstone Pty Ltd

[2013] FWCA 636

[2013] FWCA 636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Baulderstone Pty Ltd
(AG2012/14310)

BAULDERSTONE PTY LTD, ST HELENA TUNNEL AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 29 JANUARY 2013

Application for approval of the Baulderstone Pty Ltd, St Helena Tunnel Agreement 2012.

[1] An application has been made for approval of a Greenfields Agreement known as the Baulderstone Pty Ltd, St Helena Tunnel Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act)by Baulderstone Pty Ltd. The Agreement is a single-enterprise Greenfields Agreement.

[2] The Agreement at clause 22 - Hours of work and rostered days off (RDOs), provides for an ordinary span of hours from 6:00am to 6:00pm. The Building and Construction General On-site Award 2010 (the Award) provides for an ordinary span of hours from 7:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in Appendix 1 of the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours.

[3] The Commission questioned the operation of clause 15 - Flexibility, and in particular, subclause 15(a)(ii)(iii) of the Agreement. The Applicant subsequently advised that with respect to subclause 15(a)(ii) this could allow making a flexibility agreement around the taking of rostered days off, for example, taking part days or hours in order to accommodate an early finish or late start. The Applicant subsequently advised that with respect to subclause 15(a)(iii) this would allow the employer and employee to make a flexibility agreement regarding the taking of meal breaks, for example, working through a meal break to accommodate a late start or early finish.

Nominal expiry date

[4] The Commission notes that the Agreement does not contain a nominal expiry date as required by s.186(5) of the Act. The Applicant has subsequently advised that the nominal expiry date of the Agreement is 30 June 2015.

[5] I have considered the matters contained in the employer declaration and the declaration made on behalf of the Australian Workers’ Union (AWU), which I note will be covered by the Agreement.

[6] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the AWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Greenfields Agreement in relation to work that is to be performed under it.

[7] Pursuant to s.187(5)(b), the Act requires that it is in the public interest to approve the Agreement. The Employer has submitted in its employer declaration that the approval of this agreement would be in the public interest for the following reasons:

● The Agreement was negotiated specifically for the needs of employees who will be performing tunnel excavation work in the St Helena Tunnels as part of the Pacific Highway Upgrade Project - Tintenbar to Ewingsdale for Baulderstone;

● The Agreement will have a positive impact of the productivity of Baulderstone’s workplace by providing an opportunity for employees to utilise new and existing skills; and

● The Agreement will ensure that there is stability for the wider community in continued employment opportunities as the Pacific Highway Upgrade Project expands.

[8] The Greenfields Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 5 February 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code G, AE899594  PR533587>