Broadspectrum (Australia) Pty Ltd T/A Allwater JV

[2019] FWCA 6582

[2019] FWCA 6582

FAIR WORK COMMISSION

DECISION

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

Broadspectrum (Australia) Pty Ltd T/A Allwater JV
(AG2019/2826)

ALLWATER JV EMPLOYEES ENTERPRISE AGREEMENT 2019 - PROFESSIONAL, TECHNICAL, SUPERVISORY AND ADMINISTRATION AGREEMENT

Water, sewerage and drainage services
COMMISSIONER PLATT	ADELAIDE, 23 SEPTEMBER 2019

Application for approval of the Allwater JV Employees Enterprise Agreement 2019 - Professional, Technical, Supervisory and Administration Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Allwater JV Employees Enterprise Agreement 2019 - Professional, Technical, Supervisory and Administration Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Broadspectrum (Australia) Pty Ltd T/A Allwater JV. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 August 2019.

[3] On 15, and 28 August 2019, I conducted telephone conferences with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] It is noted that the definition of a casual employee contained in the Agreement may result in some employees being incorrectly described as a casual employee for the purposes of the National Employment Standards (NES), however, as a result of the NES precedence clause contained in the undertaking as below, employees will be entitled to leave benefits under the NES, and I am of the view that the requirements of s.55 of the Act (in this regard) has been met.

[5] The Applicant has submitted an undertaking in the required form dated 19 September 2019. The undertaking deals with the following topics:

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

•  The Applicant provides that annualised salaried employees will not work on Saturday or Sunday, except for such employees in the Operations Control Centre, who will be compensated with a salary amount greater than the equivalent base rate plus weekend and shift penalties.

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  All annualised salaried employees will be classified at Grade 2 and above, and their annual salary will be calculated as 1976 multiplied by the applicable hourly rate.

•  Overtime penalties will apply for all time worked in excess of “130 hours of uncompensated Company authorised overtime” per financial quarter for annualised salaried employees.

•  The salary for Grade 2 annualised salaried employees will not include an on-call allowance, as such, if such an employee is required to perform on-call duties they will be paid the on-call allowance.

•  All annualised salaried employees required to work on-call at a frequency greater than one week in two will be paid the on-call allowance in addition to their annualised salary.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded felt that the amendment to clause 5.7, which deals with overtime conditions for annualised salary employees, was not explained during the bargaining process and had it been present in the original agreement, they may not have voted to approve it.

[7] It appears from the employee bargaining representatives’ correspondence, they feel the undertaking represents a substantial change to the agreement, contrary to s.190(3)(b). I corresponded with the concerned employee bargaining representatives, and the other parties to this application, and invited them to apply for the issue to be resolved at hearing. The employee bargaining representatives did not take up this invitation.

[8] Nonetheless, I have considered whether the undertaking represents a substantial change and I have concluded that it does not.

[9] The original clause 5.7 operated to provided that annualised salaried employees received a salary that was inclusive of all ‘reasonable overtime’. Modelling performed by the Fair Work Commission gave rise to concerns that if such employees worked more than 130 hours of sanctioned overtime in any given financial quarter they may be worse off overall.

[10] As explained at [5] above, the undertaking effectively defines ‘reasonable overtime’ as 130 hours or less in any given financial quarter. The BOOT concerns are addressed by compensating annualised salary employees with overtime penalties for all hours over this ‘reasonable’ limit.

[11] In my opinion the undertaking clarifies employee expectations, and removes doubt as to whether the Agreement meets the BOOT.

[12] Observing the above discussion, the undertakings appear 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.

[13] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the Community and Public Sector Union (CPSU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[14] 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.

[15] 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 1 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE505405 PR712640>