Brendan Whalley v Bechtel Construction (Australia) Pty Ltd
[2024] FWC 3146
•18 NOVEMBER 2024
| [2024] FWC 3146 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Brendan Whalley
v
Bechtel Construction (Australia) Pty Ltd
(C2024/6123)
| DEPUTY PRESIDENT LAKE | BRISBANE, 18 NOVEMBER 2024 |
Alleged dispute about any matters arising under the enterprise agreement – opinion issued
On 31 August 2024, Mr Brendan Whalley (the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) seeking to resolve a dispute with Bechtel Construction (Australia) Pty Ltd (the Respondent).
The Applicant is self-represented. The application relates to classifications for scaffolders under the Bechtel Construction (Australia) Pty Ltd Pluto Train 2 Project Agreement (the Agreement).
The Building and Construction On-site Award 2020 (the Award) has numerous levels of classification for different types of constructions workers. Under the Agreement, all scaffolders are classed as CW2. The Applicant’s argument appears to be that he would be classified as CW4 under the Award, whereas under the Agreement he is classified as CW2. The Applicant claims that the Fair Work Ombudsman verified that the Applicant’s interpretation of CW4 is correct.
The Respondent argued in their aide memoire that, under the Award, scaffolders are in fact listed as CW2. In Schedule A of the Award, it is noted that CW2 incorporates the broadbanded award classification of scaffolder.[1]
Several of the Applicant’s arguments are misconceived.
The Applicant’s Form F10 application notes:
1. Background: Negotiations broke down between Bechtel Management and scaffolders on the Pluto Train 2 Project over classification entitlements, despite attempts to resolve the issue through the Fair Work Ombudsman.
2. Classification: The project agreement assigns all scaffolders to the CW2 classification, not reflecting their varying qualifications and experience levels.
3. Non-Employment of Basic Scaffolders: Bechtel does not employ basic scaffolders, arguing they lack the qualifications and experience for high-risk work on oil and gas sites, which contradicts their CW2 classification.
4. Compliance Issues: Bechtel complies with Work Safe Australia by employing intermediate and advanced scaffolders but ignores Fair Work Australia classifications, causing discrepancies in classification and compensation.
5. Role of Scaffolders: Intermediate and advanced scaffolders are essential for safety and efficiency, enabling other trades to work safely at heights and undertaking high-risk tasks.
6. Good Faith Bargaining: Bechtel's failure to disclose intentions about qualification classifications during negotiations breaches Fair Work Act 2009 s.228 good faith bargaining requirements.
7. Worker Impact: Current practices result in workers being on lower pay grades than entitled and not fully compensated for their work, undermining their qualifications.
8. Future Implications: If Bechtel's practices continue, it could set a precedent forcing other companies to follow, further undermining worker entitlements and qualifications.
The Applicant’s aide memoire notes:
2. Classification Levels: Entitlements and Minimums
a. Paying above the minimum award does not absolve an employer from adhering to workers' legal entitlements.
i. The Fair Work Commission Guide to the Better Off Overall Test (BOOT) states that, enterprise agreements must pass the “Better Off Overall Test” (BOOT). We use this test to make sure the agreement has better entitlements than any relevant award. The (BOOT) compares the terms in the agreement, with the terms in the relevant award.
ii. Awards set out minimum wages and conditions for workers or employees. Part of the conditions are classification entitlements which are also minimums. When creating agreement employers are instructed to refer to the classification definitions to correctly classify their employees. Paying above the minimum hourly rate does not mean workers forfeit their other entitlements or that employers can unilaterally ignore or dismiss their entitlements.
3. Incorrect Justification of Industry Standards
a. Bechtel’s admission, in their aide memoire (point 12), that it is standard industry practice under (The Award) and various enterprise agreements to classify basic, intermediate, and advanced scaffolders as CW2, is questionable.
i. The Australian Fair Pay and Conditions Standard (The Standard) stipulates that a Union Greenfields Agreement cannot override an employee's entitlements under (The Standard).
ii. Numerous examples of standard industry practices outlined in various enterprise agreements and (The Award) correctly classify basic, intermediate, and advanced scaffolders as CW2, CW3, and CW4, respectively, in line with the entitlements specified in the Fair Work Award 2009 (The Act).
4. De-skilling and Discrimination
a. Failure to honour the commitment stated in the Bechtel Construction (Australia) Pty Ltd – Pluto Train 2 Project Agreement (The Agreement) under section 2: Income, subsection 9: Wage Rates, subheading: Wages and Classifications Structure (1) paragraphs 1 & 2 states that:
i. The classification structure in this Agreement is set out below. Indicative tasks undertaken by various levels within the classification structure is described in detail in Appendix 1 – Classification Structure of this Agreement.
ii. Employees must be prepared to perform all tasks as required of their classification level or any lower level for which they have the required skills and competence provided that the intention of this provision is not to promote the de-skilling of classifications, but to recognise and make use of the full range of skills and competence held by the workforce.1. However, to gain employment on the Pluto Train 2 Project construction site, scaffolders must hold intermediate or advanced certification. Despite this requirement, there is clear evidence of an attempt to de-skill classifications.
a. For example, Bechtel’s aide memoire deliberately avoids any reference to qualifications.
I conducted a conference with the parties on 14 October 2024 where a resolution was not reached. In order to resolve the matter, I have provided a written opinion in the form of a Recommendation to resolve this dispute under s.595(2) of the Act and clause 7(7)(b) of the Agreement. It was explained to the Applicant during the conference that where an enterprise agreement is in place, it displaces the relevant modern award. The Applicant was advised that four unions – the AMWU, AWU, CEPU and CFMEU – signed off on the Agreement.[2] The Agreement is a Greenfields Agreement.
On 27 October 2024 the Applicant emailed Chambers arguing that the Agreement fails the better off overall test (BOOT) and is adverse action against intermediate and advanced scaffolders. The Applicant argued:
Bechtel has reduced Intermediate and Advanced Scaffolders’ entitlements and classifications from CW4 – in the classification definitions as specified under the relevant award (Building and Construction On-site Award [MA000020]) - to CW2, which is the lowest High-Risk Work license.
Bechtel’s justification is that the Pluto Train 2 Project Agreement is in excess of the basic minimum National Award rate, which is true for every on-site Trade or Skill’s National basic Award rate. However, Advanced and Intermediate Scaffolders are the only discipline on-site where entitlements are reduced to CW2 level, constituting Adverse Action against them.
The Applicant appears to be arguing, in a convoluted way, that by being classified as CW2, his skills and qualifications are not being recognised.
I note that under the Agreement the Applicant is being paid $45.41 per hour as a scaffolder, whereas the award rate for CW4 workers under the award is $28.02 per hour. The Applicant contends that “Bechtel’s justification is that the Pluto Train 2 Project Agreement is in excess of the basic minimum National Award rate, which is true for every on-site Trade or Skill’s National basic Award rate” The Applicant appears to be arguing that it is irrelevant that his hourly rate of pay is well in excess of the Award. This is misconceived. Rates of pay almost certainly would have been a consideration for the four unions who signed off on the Agreement when applying the BOOT.
The wording of the Agreement is clear. Both the Applicant and the Respondent agree that the wording of the Agreement means that all scaffolders under the Agreement are classified as CW2.
In the circumstances, it is not appropriate for the Applicant to use s.739 of the Act to retrospectively challenge the application of the BOOT to the Agreement after the test time has passed and the Agreement has been approved. If the Applicant wishes to make that challenge, he needs to go to another jurisdiction. I recommend that if the Applicant wishes to pursue his arguments, he should raise his arguments during bargaining for the next agreement. The Agreement expires on 19 December 2025. I recommend that the Respondent explain the Applicant’s entitlements under the Agreement to him.
If the Applicant wishes to argue that he has been discriminated against, s.739 is not the appropriate provision under which to bring this argument. I note that the Applicant conflates classifications and entitlements, claiming that entitlements for CW4 scaffolders have been denied. It is not clear what entitlements the Applicant is referring to. Commissioner O’Neill (as she then was) considered the application of the National Employment Standards (NES) in her decision approving the Agreement and noted: “I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.”[3]
The dispute should be considered resolved.
DEPUTY PRESIDENT
[1] Building and Construction On-site Award 2020 A2.2(d).
[2] [2021] FWCA 7179
[3] Bechtel Construction (Australia) Pty Ltd Pluto Train 2 Project Agreement [2021] FWCA 7179
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