Broadspectrum (Australia) Pty Ltd (formerly Transfield Services (Australia) Pty Ltd)
[2017] FWCA 2289
•27 APRIL 2017
[2017] FWCA 2289 FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
Broadspectrum (Australia) Pty Ltd (formerly Transfield Services (Australia) Pty Ltd)
(AG2017/1329)
TRANSFIELD SERVICES (AUSTRALIA) PTY LTD POWERLINE ENTERPRISE AGREEMENT 2011-2013
Electrical contracting industry
DEPUTY PRESIDENT GOOLEY
MELBOURNE, 27 APRIL 2017
Application for variation of the Transfield Services (Australia) Pty Ltd Powerline Enterprise Agreement 2011-13.
[1] An application has been made for approval of a variation to the Transfield Services (Australia) Pty Ltd Powerline Enterprise Agreement 2011-13[1] (the Agreement). The application was made by Broadspectrum (Australia) Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).
[2] The application seeks approval to vary clauses 1, 2, 3, 4, 5, 10, 11, 12, 13, 15, 16, 17, 19, 25, 30, 36, 41, 43, 44, 45, 46 and Appendices A and K:
1. By deleting clause 1 and replacing it with the following:
1. TITLE OF AGREEMENT
This Agreement shall be known as the Broadspectrum (Australia) Pty Ltd Powerline Enterprise Agreement 2011-2013.
2. By deleting the first sentence of subclause 2.1 and replacing it with the following:
This Enterprise Agreement (herein known as the Agreement), will apply in respect to all current and future employees who are employed by Broadspectrum (Australia) Pty Ltd (referred to in this agreement as 'the Employer') who are engaged in any of the classifications contained in this agreement (at clause 38).
3. By deleting subclause 3.2.1 and replacing it with the following:
3.2.1 The parties commit to review the classification structure during the life of the agreement doing so by way of establishing a working group for this purpose. The parties commit to meet within three months of the agreement being approved to commence this process.
4. By deleting the following from subclause 4.1.5:
Union or ETU are interchangable and mean the relevant State Secretary of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division.
5. By deleting clause 5 and replacing it with the following:
5. PARTIES COVERED
This Agreement will cover the Employer and its employees who are engaged in any of the classifications contained in this agreement (at clause 38).
(Please note that a union may be covered by this Agreement if it elects to be covered by this Agreement in accordance with section 183 of the Fair Work Act 2009 ("the FW Act") and is noted in the decision of Fair Work Australia to approve the agreement that the agreement covers that union.
6. By deleting clause 10 and replacing it with the following:
10. COMMITMENTS
10.1 General
The parties have a common interest in the Electrical Distribution and Transmission industry therefore a stable working environment and harmonious relations are required to improve the relationship between the Employer, its employees and its customers. Progress in the industry demands a mutuality of confidence between the parties. All will benefit by continuous peace and by adjusting any difference by a rational common sense method.
The parties acknowledge that management will continue to seek productivity and efficiency improvements over the life of this agreement.
Upon request from an Employee the Employer, shall provide reasonable access to a copy of this Agreement in full.
10.2 DELETED
10.3 Security of Employment Arrangements
10.3.1 Overview
The Employer is committed to maintaining a stable and skilled workforce, recognising its contribution to the operation of the Employer.
10.3.1(a) DELETED
10.3.1(b) The Employer agrees that it is highly important to ensure that work is performed effectively, efficiently and without undue pressure or bullying, and in a way that promotes OHS and EEO principles and practices in the workplace and appropriate representation of employees should they so request. The Employer will ensure that its employment practices are consistent with the above principles and practices.
10.3.2 Definitions
For the purposes of this clause the following definitions will apply:
"Employer" means the employing entity bound by this Agreement and its successors, assignees and transmitees.
10.3.3 Compliance with this Agreement
The rates and allowances prescribed in this Agreement are the minimum amounts to be paid by the Employer. The Employer must pay each and every rate and allowance in this Agreement as and when they fall due.
10.4 Site Project Closure
Upon cessation of work on any day, the employees will carefully put away all tools, materials, equipment or any other property of the Employer in a safe and secure manner and ensure the site is left in a safe condition.
10.5 Labour Resources
10.5.1To assist in achieving adequate standards of competence and associated safe work practices, it is agreed between the parties that the Employer will primarily hire employees who have been trained and received their qualification or are recognised under the Australian Qualifications Framework
10.5.2So Occupational Health & Safety Standards are met and safety for employees is not compromised the Employer will ensure that the qualifications and level of competence of workers trained outside Victoria meet Victorian standards.
10.6 Flexibility and Productivity
10.6.1The parties agree that this Agreement commits every employee of the Employer to exercise the necessary flexibility and productivity improvements and broadness of approach as contained in this Agreement so that the Employer can remain competitive in the market place.
10.6.2If the Employer and the employees wish to develop a Consultative Committee they may do so.
10.7 Workmanship and Quality
Employees appropriately qualified will sign all required documentation in accordance with the applicable statutes and regulations. The parties will develop and implement guidelines in conjunction with the relevant authorities.
Employees will complete all required documentation, especially time sheets, on time and accurately.
Employees commit to taking accountability for completing daily tasks and preparing for tomorrow's tasks where practicable.
Employees are required to perform their functions and duties in accordance within the generally accepted principles of good quality and safe practices. Provided that all work performed shall be within the limits of the employees' skill, training, classification and competence. It is also a term and condition of employment that an employee will:
(a) Properly use and maintain all appropriate vehicles, protective clothing, tools and equipment provided by the Employer.
(b) Maintain a commitment to implement and observe the best agreed health and safety practices, quality procedures, site cleanliness and waste management practices.
(c) Provide and maintain an adequate kit of tools as stated in this agreement.
(d) Sign all required documentation in accordance with the accredited Quality Assurance program.
(e) Conduct minor vehicle maintenance where possible and practicable and where employees are provided with the appropriate tools and it is safe to perform such work.
It is understood that Quality Assurance is a key factor to ensure that the Employer becomes a more competitive and efficient enterprise.
The parties are therefore committed to the introduction and maintenance of accredited Quality Assurance programs where deemed necessary by the Employer and in accordance with Australian Standards.
10.8 Stand downs
Nothing in this Agreement shall affect the right of the Employer to deduct payment for any day an employee cannot be usefully employed because of any strike, or stoppage of work by any cause for which the Employer cannot reasonably be held responsible
10.9 Discussions about the operation of the Agreement
The Employer authorises and agrees to an annual meeting of the Employees related to the monitoring of this Agreement and seeking the views of the Employees on this Agreements operation. The meeting will be at a time and location to be agreed between the parties during normal working hours of approximately two hours duration.
10.10 Drug and Alcohol Policy
The Alcohol and Other Drugs Policy is contained in APPENDIX I - ALCOHOL AND DRUGS POLICY of this Agreement. Nothing in this Agreement precludes an Employer or client specific Alcohol and Other Drugs Policy from operating in conjunction with APPENDIX I - ALCOHOL AND DRUGS POLICY.
Where there is an inconsistency between the Employer specific policy and that of APPENDIX I -ALCOHOL AND DRUGS POLICY, the Employer specific policy will apply. Any new policy introduced by the Employer will be put forward to the Employer's consultative committee for review.
10.11 Productivity Measures and Targets
In order for all parties to understand benefits gained through improved efficiency and flexibility, performance measures will be developed and then monitored.
The parties also agree that employees will be ready to start productive work at commencement time and work until completion time.
7. By deleting subclause 11.2 and replacing it with the following:
11.2 Casual conversion to full-time or part-time employment
A casual employee, other than an irregular casual employee, who has been engaged by a particular Employer for a sequence of periods of employment under this Agreement during a period of six months, thereafter has the right to request to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
For the purposes of this clause, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
The Employer must give an employee notice in writing of the provisions of this clause within four weeks of that employee having attained such period of six months. The employee retains their right to request under this clause if the Employer fails to comply with the clause.
A casual employee who does not within four weeks of receiving written notice request to convert their contract of employment to full-time or part-time employment is deemed to have decided against any such conversion request.
Any casual employee who has a right to request under this clause, on receiving notice under this clause or after the expiry of the time for giving such notice, may give four weeks' notice in writing to the Employer that they seek to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the Employer must consent to or refuse the request.
8. By deleting subclause 12.6.1 and replacing it with the following:
12.6.1 The following matters may be varied by agreement between the Employer and the majority of the employees concerned, to accommodate the hours of work required for the most efficient and safe operation of the Employer and the requirements of its client. Agreement will not be unreasonably withheld.
i.How the hours are to be averaged in a work cycle;
ii.The duration of the work cycle;
iii.Rosters which specify start and finishing times;
iv.Arrangements allowing flexibility in taking of rostered days off (RDOs);
v.Daily maximum ordinary hours
9. By deleting subclause 13.2.2 and replacing it with the following:
13.2.2An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
i.any risk to employee health and safety:
ii.the employee's personal circumstances including any family responsibilities:
iii.the needs of the workplace or enterprise.
iv.the notice {if any) given by the Employer of the overtime and by the employee of his or her intention to refuse it; and
v.any other relevant matter.
On jobs where overtime is necessary, the work crew may be rostered so that each employee is not disadvantaged as to the amount of overtime they can work. On any day that overtime is worked there will be no necessity for all employees on that particular job to work and there will be no requirement for overtime to be provided to any employees beyond those operationally required to complete the overtime work.
Overtime can be worked on a rostered day off weekend is also acknowledged that employees required to first attend at the depot or registered office prior to starting time and then make their way to the work site will be paid as time worked. The return journey after ceasing work will also be paid as time worked.
10. By deleting subclause 13.4 and replacing it with the following:
13.4Time Off In Lieu Of Overtime
Time-off-in-lieu (TOIL) will be, in respect of overtime worked, available on a voluntary basis. The TOIL provisions are as follows:
i.Overtime hours may be converted to TOIL in four hour blocks from the actual overtime hours worked each week.
ii.TOIL hours shall be taken in full day periods unless otherwise agreed.
iii.A maximum of twelve TOIL days may be taken in any year (July 1 to June 30). Any extra days will be subject to agreement with management.
iv.A maximum of twelve TOIL days may be in the TOIL bank at any one time.
v.A consideration in agreeing to the taking of TOIL days is the number of days of accumulated annual leave and RDO's.
The Employer and the employees covered by this Agreement will monitor the size of accumulated leave (ARL, TOIL, RDO's) occurring as a result of this agreement. If it appears that high levels of leave are being accumulated the matter can be further discussed.
11. By deleting clause 15 and replacing it with the following:
15. DELETED
12. By deleting the first sentence of clause 16 and replacing it with the following:
The following shall apply to the training of any employee employed under this agreement.
13. By deleting subclause 16.3 and replacing it with the following:
16.3 Apprentices/Trainees
To ensure that apprentices receive on the job training by experienced trades people and apprentice numbers are maximised, the Employer shall endeavour to maintain a ratio of at least one apprentice to four tradespeople.
Where this is not achievable due to health and safety reasons or matters outside the Employer's control, the Employer and the relevant employees covered by this Agreement shall discuss the matter and try to reach a settlement. If no settlement is possible the matter may be dealt with in accordance with clause 25.2.5 of this Agreement.
The Employer and the employees covered by this Agreement will investigate the proposal to establish a Power Industry Apprentice Training Scheme.
Apprentices and Trainees shall be required to complete the off-the-job component of their training without loss of pay and during ordinary working hours, including attendance at an RTO premises as required.
14. By deleting subclause 16.9 and replacing it with the following:
16.9 Asset Inspectors – Training
Training of Asset Inspectors is vital to the future of the industry.
15. By deleting subclause 17.2 and replacing it with the following:
17.2 Fatigue Management
It is agreed that fatigue management, due to the inherent requirements associated with the performance of distant work, has the potential to be a serious occupational health and safety issue.
Accordingly if any of the Employees covered by the Agreement foresee an issue over fatigue management, due to travelling to perform distant work, they will raise it at the earliest opportunity so that the issue can be identified and suitable responses discussed and finalised.
16. By deleting subclause 17.6 and replacing it with the following:
17.6Deleted
17. By deleting the second paragraph of subclause 19 and replacing it with the following:
It is agreed that in the event of inclement weather consultation will be held between the Employer and the employees covered by this Agreement within a reasonable period of time which shall not exceed 60 minutes with a view to reaching agreement to continue work. On reaching agreement, steps will be taken to ensure that work can continue in a safe and secure manner.
18. By deleting subclause 25.1.6 and replacing it with the following:
25.1.6At all times, the elected employee OHS Representative may seek the assistance of a representative or a person who is suitably qualified in OHS, and the supervisor may also seek advice or assistance.
19. By deleting subclause 25.2 and replacing it with the following:
25.2Resolving Other Issues
25.2.1Where a dispute arises over permitted matters (as currently defined in the Fair Work Act), the application of this Agreement or the NES, the matter shall be first submitted by the employee or Employee Representative (if any and including the Union) to the supervising officer or another appropriate manager, or vice versa. If not settled, the matter may be referred to more senior persons.
25.2.2 While this procedure is being followed the status quo that existed immediately prior to the events that gave rise to the dispute will remain and, subject to this, work shall continue normally where it is agreed that there is an existing custom and practice, but in other cases, the work shall continue at the instruction of the Employer. Failure to continue shall be a breach of the Agreement.
25.2.3 No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub clause.
25.2.4 DELETED.
25.2.5 If still not settled, either party may submit the matter, in accordance with this clause, to:
(a)the Disputes Board for conciliation and/or, arbitration; or
(b)directly to FWA for conciliation and/or arbitration, or for a review of an arbitrated decision of the Disputes Board.
25.2.6 To avoid doubt, a party to a dispute may:
(a)apply to FWA notwithstanding the fact that the Disputes Board has already conciliated the matter; or
(b)if the Disputes Board has arbitrated the matter, apply to FWA for a review of the decision within 14 days of the decision having been made; or
(c)elect to submit the matter directly to FWA without first going to the Disputes Board.
25.2.7 If a matter is submitted to the Disputes Board:
•The decision of the Disputes Board is binding on the parties, subject to the right to review in accordance with this clause.
•Where a matter does progress to FWA for arbitration or review, its decision shall be final and binding on the parties, subject to either party exercising any right of appeal against the decision to a Full Bench.
In conciliating or arbitrating a matter under this clause, or conducting an appeal under this clause, FWA may exercise such procedural and other powers in relation to conferences, hearings, witnesses, evidence and submissions as are necessary to make the conciliation, arbitration, arbitration hearing, or review effective. To avoid doubt, in conducting a review, FWA is not confined to a consideration of the materials before the Disputes Board, and may deal with the matter afresh or conduct any hearing afresh and substitute its decision for that of the Disputes Board. In conducting a review, it is not necessary for FWA to determine whether the decision of the Disputes Board was affected by error.
A decision of the Disputes Board or FWA made pursuant to this clause 25.2.7 must not be inconsistent with the Code for the Tendering and Performance of Building Work 2016, Building and Construction Industry (Improving Productivity) Act 2016 and any other legislative obligations.
For the purposes of the disputes procedure:
25.2.7(a) At all stages of this procedure, those involved in the dispute may seek the assistance of an employee representative, Employer representative (if any) and/or other representative.
20. By deleting subclause 25.3 and replacing it with the following:
25.3Electrical and Communication Industry Disputes Board
The Disputes Board shall deal with all matters referred to it under clause 25.2 having full regard to the dispute procedure in this Agreement and to its charter.
21. By deleting the first two paragraphs of clause 30 and replacing them with the following:
An availability roster may be established by the employer to ensure that employees with the required skills are available to meet out of hours operational and customer requirements. Agreement will not be unreasonably withheld.
All suitably skilled employees will be given the opportunity to perform availability duty.
22. By deleting clause 36 and replacing it with the following:
36. SAFETY MANAGEMENT SCHEMES
Where the Employer plans to introduce a Safety Management Scheme, under the Electricity Safety (Management) Regulations 2009 (Vic) or its successor, it shall do so after consultation with the employees.
23. By deleting subclauses 41.1.4 and 41.1.5 and replacing them with the following:
41.1.4 DELETED
41.1.5 DELETED
24. By deleting the tables in Appendix A – Wage Rates and replacing them with the following:
Tradesperson Rates
Level
1-Sep-10
Weekly
Hourly
1-Sep-11
Weekly
Hourly
1-Sep-12
Weekly
Hourly
31-Aug-13
Weekly
Hourly
1 979.48 27.21 1044.32 29.01 1086.09 30.17 1129.54 31.38 2 1022.59 28.41 1089.15 30.25 1132.72 31.46 1178.03 32.72 3 1065.69 29.60 1133.98 31.50 1179.34 32.76 1226.51 34.07 4 1109.22 30.81 1179.25 32.76 1226.42 34.07 1275.48 35.43 5 1180.50 32.79 1253.38 34.82 1303.52 36.21 1355.66 37.66 6 1222.75 33.97 1297.32 36.04 1349.21 37.48 1403.18 38.98 7 1310.24 36.40 1388.31 38.56 1443.84 40.11 1501.60 41.71 8 1396.88 38.80 1478.42 41.07 1537.55 42.71 1599.05 44.42 9 1439.99 40.00 1523.25 42.31 1584.18 44.00 1647.55 45.77 10 1569.73 43.60 1658.18 46.06 1724.51 47.90 1793.49 49.82
Level
1 Nov 16
Weekly
Hourly
1 1283.76 35.66
2 1320.48 36.68 3 1410.48 39.18 4 1473.12 40.92 5 1525.32 42.37 6 1629.36 45.26 7 1733.40 48.15 8 1777.32 49.37
9 1800.36 50.01 10 1823.40 50.65 Apprentice Rates
Year
1-Sep-10
Weekly
Hourly
1-Sep-11
Weekly
Hourly
1-Sep-12
Weekly
Hourly
31-Aug-13
Weekly
Hourly
1 434.04 12.06 461.69 12.82 480.16 13.34 499.37 13.87 2 589.40 16.37 626.27 17.40 651.32 18.09 677.37 18.82 3 797.24 22.15 847.13 23.53 881.01 24.47 916.26 25.45 4 935.52 25.99 993.94 27.61 1033.70 28.71 1075.05 29.86
Level
1 Nov 16
Weekly
Hourly
1 560.49 15.57 2 760.28 21.12 3 1028.41 28.57 4 1206.64 33.52
Adult Apprentice Rates
Year
1-Sep-10
Weekly
Hourly
1-Sep-11
Weekly
Hourly
1-Sep-12
Weekly
Hourly
31-Aug-13
Weekly
Hourly
1 553.12 15.36 585.53 16.26 608.96 16.92 633.31 17.59 2 797.24 22.15 842.42 23.40 876.12 24.34 911.16 25.31 3 935.52 25.99 990.94 27.53 1030.58 28.63 1071.80 29.77 4 970.09 26.95 1029.89 28.61 1071.09 29.75 1113.93 30.94 Level
1 Nov 16
Weekly
Hourly
1 710.83 19.75 2 1022.69 28.41 3 1202.99 33.42 4 1250.28 34.73
25. By deleting the tables immediately after subclause 43.2.2 and replacing it with the following:
1-Sep-10 1 - Sep-11 1-Sep-12 31-Aug-13 1 Nov 16 Leading Hand
3 to 10
11 to 2031.01
42.96
42.48
87.4845.00
93.01
47.53
98.45
53.35
110.50Service Increment
1 year
3 years
5 years
7 years
10 years1.45
3.03
6.05
9.26
12.45
1.51
3.15
6.29
9.6312.95
1.57
3.28
6.54
10.02
13.47
1.63
3.41
6.81
10.42
14.00
1.83
3.83
7.64
11.70
15.71Nominee
per week
63.46
66.00
68.64
71.38
80.12
E Class Licence
Per week49.15
51.12
53.16
55.29
62.06
High Voltage Tower 33.19
34.52
35.90
37.33
41.90
Availability
Per week
Per day308.28
44.04
339.11
48.44
373.02
53.29
410.32
58.62
460.54
65.80First Aid
Level 2
Level 321.42
28.56
22.28
29.70
23.17
30.89
24.09
32.13
27.04
36.06Meal 13.50 18.00 18.00 18.00 20.20 Fares
Own Car
VBI Site
Co Car16.99
20.41
3.3217.67
21.23
3.4518.38
22.08
3..5919.11
22.96
3.7321.45
25.77
4.19Motor Vehicle
Per km
0.84
0.87
0.91
0.94
1.06
Loss of Tools 1180
1227.20
1276.29
1327.37
1489.81
Allowance Rates (per day)
1 Sep 10 1 Sep 11 1 Sep 12 31 Aug 13 1 Nov 16 66 KV Sticks 33.36 34.69 36.08 37.53 42.12 Crane Drives standing poles near live H.V.4% 18.68
19.43
20.20
21.01
23.59
Ring Operations (subs and spurs) 3-10 9.34
9.44
10.00
10.56
11.85
Zone Operations (backbone) 1O+ 16.02 19.44 20.67 21.88 24.56 Ring Operations & Zone Substation Operating 20.02
20.82
21.65
22.52
25.28
Limited Inspection 9.34 9.71 10.10 10.51 11.80
26. By deleting subclause 44.2.3 and replacing it with the following:
44.2.3 Subject to the foregoing, the Employer is requested by Employees to consider a claim for payment of a Site Allowance, such Site Allowance shall be determined either by:
44.2.3(a)Geographic location if the project is contained within the City of Melbourne as defined in clause 44.5 or
44.2.3(b)The amount contained in clauses 44.3 and 44.4. A Site Allowance shall be paid at the appropriate rate per hour flat for hours worked, to compensate for all special factors and/or disabilities on a project and in lieu of the following Award special rates - confined space, wet work, dirty work, second-hand timber and fumes. Award special rates and disability payments (other than mentioned above) shall be applied as and when incurred, in accordance with the Award conditions.
27. By deleting subclauses 45.1.4 and 45.1.5 and replacing them with the following:
45.1.4On any day where work is hindered by inclement conditions the supervisor shall confer with the health and safety representative (or employee representative) when requested
45.1.5DELETED.
28. By deleting subclause 46.1.2 and replacing it with the following:
46.1.2For the purposes of this clause a declared event may include circumstances such as loss of supply, or risk to public health and safety and/or returning the network to system normal. The Employer will determine the labour required in the case of a declared event and roster employees accordingly.
29. By deleting Appendix K in its entirety.
30. By amending the footer in the Agreement to read:
Broadspectrum (Australia) Pty Ltd Powerline Enterprise Agreement 2011-2013
[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), a bargaining representative for the Agreement covered by the Agreement, is not opposed to the application.
[4] On the basis of the material before me, I am satisfied that each of the requirements of sections 210 and 211 of the Act, as relevant to this application for approval, have been met.
[5] The variation is approved and a consolidated version of the Agreement, as varied, is attached to this decision.
[6] In accordance with section 216 of the Act, the variation operates from 26 April 2017.
DEPUTY PRESIDENT
[1] AE893339.
Printed by authority of the Commonwealth Government Printer
<Price code J, AE893339 PR592219>
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