Boom Logistics Ltd T/A Boom Logistics

[2019] FWCA 3480

[2019] FWCA 3480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boom Logistics Ltd T/A Boom Logistics
(AG2019/177)

BOOM LOGISTICS LTD OLYMPIC DAM ENTERPRISE AGREEMENT 2019 - 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 20 MAY 2019

Application for approval of the Boom Logistics Ltd Olympic Dam Enterprise Agreement 2019 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Boom Logistics Ltd Olympic Dam Enterprise Agreement 2019 - 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Boom Logistics Pty Ltd T/A Boom Logistics. The agreement is a single enterprise agreement.

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

[3] On 13 May 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) provided a submission which, whilst acknowledging that it was not a bargaining agent, sought to make submissions as to the approval of the Agreement including pre-approval and BOOT issues. The CFMMEU is not a party to these proceedings. The CFMMEU invited me to exercise my discretion under s.590 of the Act to receive a submission from them. I declined to do so as such a course would be inconsistent with s.176 of the Act. I advised the CFMMEU that I would exercise my discretion to receive their submission so as to better inform myself as to whether the relevant tests had been met. Their submission covered a number of the issues including the BOOT test and the operation of clause 15, 16, allowances and excessive leave accruals.

[4] On 15 May 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 the provision of an undertaking.

[5] The Applicant distributed a Notice of Employee Representational Rights (NERR) which was not in the form required by the Act at the time of its distribution. I accept the Applicant’s submission that the old NERR was distributed by mistake. I find that the error with respect to the NERR was a minor or technical error as described by s.188(2)(a), that employees were not disadvantaged as a result, and that the agreement was genuinely agreed.

[6] The Applicant has submitted an undertaking in the required form dated 20 May 2019. The undertaking deals with the following topics:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  The definition of a shift worker will be for the purposes of the NES and will mirror the Mobile Crane Hiring Award 2010 (the Award) definition.

•  Despite clause 20 of the Agreement, the redundancy scheme in clause 12 of the Award will apply.

•  A revised definition of afternoon shift was provided.

•  A reconciliation clause was provided for casual employees.

•  Trainee wage rates were varied to 75% of the relevant full-time rate.

•  The direction of employees to take excessive annual leave was subject to 8 weeks leave remaining.

[7] The company provided a “worst case” BOOT analysis based on the working of 13 consecutive 12 hours shifts. I have reviewed this analysis against the Award, with the CFMMEUs’ submission in mind. I have concluded that the Agreement rates are substantially higher than the Award even taking into account the removal of the allowances.

[8] No bargaining representatives were appointed.

[9] 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.

[10] Despite the submissions by the CFMMEU, 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.

[11] 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 20 May 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503526 R708497>