Broadspectrum (Australia) Pty Ltd T/A Allwater JV

[2019] FWCA 1973

[2019] FWCA 1973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Allwater JV
(AG2018/6895)

ALLWATER JV EMPLOYEES ENTERPRISE AGREEMENT 2018 - OPERATORS AGREEMENT

Water, sewerage and drainage services
COMMISSIONER PLATT	ADELAIDE, 26 MARCH 2019

Application for approval of the Allwater JV Employees Enterprise Agreement 2018 - Operators Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Allwater JV Employees Enterprise Agreement 2018 - Operators 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 7 January 2019.

[3] On 10 January 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.

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

•  In relation to clause 3.3 of the Agreement (specifically Step 2), the following will apply:

“After due consideration of the circumstances the Senior Manager will request the Human Resources Manager to advise the Employee that they have not attained the required job competencies and that redeployment options/termination of employment may need to be considered.”

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

•  For the purposes of clause 4.6.2 of the Agreement, which relates to minimum engagement for overtime on a Saturday or Sunday, the following shall apply:

“Where an Employee works overtime on a Saturday they must be paid for a minimum of three (3) hours.

Where an Employee works overtime on a Sunday they must be paid for a minimum of three (3) hours.”

•  For the purposes of clause 4.6.2 of the Agreement, which relates to penalties and overtime for casual employees, the following shall apply:

“Penalties (including public holiday penalties) and overtime for casual employees will be calculated on the ordinary hourly rate for the classification in which they are employed exclusive of the casual loading.”

•  In relation to clause 4.6.8 of the Agreement, the Applicant clarifies that time off in lieu (TOIL) is to be taken within the same pay period in which the overtime was performed. Further, upon termination of employment any TOIL not taken by the employee will be paid to the employee at the applicable overtime rate when the overtime was performed.

•  Clause 4.10 of the Agreement, which relates to flexible working arrangements, will operate in accordance with the NES.

•  For the purposes of clause 7.1 of the Agreement, annual leave will accrue progressively.

•  For the purposes of clause 7.2.1 of the Agreement, personal leave will accrue progressively.

•  The third sentence in clause 7.2.2 of the Agreement shall be varied as follows:

“Employees will not be granted paid leave of absence if the inability to work is the result of their own misconduct, and the parties to this Agreement do not condone the misuse of personal leave.”

Though the wording, “Any misuse or questionable use of personal/carer’s leave may result in disciplinary action”, shall remain in operation.

•  Clause 7.2.3 of the Agreement shall operate in accordance with the NES, in that, an employee is not required to state the nature of their injury or illness.

•  Clause 7.3 of the Agreement will operate in accordance with section 114 of the Act.

•  Clause 7.3 of the Agreement will operate in accordance with section 89 of the Act as follows:

“If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.”

•  Clause 7.7 of the Agreement will operate in accordance with the NES in that:

“Paternity/Adoption Leave can be taken when:

- An employee’s spouse or defector partner gives birth or

- An employee adopts a child under 16 years of age.”

•  Clause 7.8 of the Agreement will operate in accordance with section 109(2) of the Act.

•  Clause 8.2 of the Agreement will operate in accordance with the NES in that:

“The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice.”

•  Clause 8.6 of the Agreement will operate in accordance with the NES in that:

“An Employee is entitled to be paid redundancy pay by the Employer if the Employee’s employment is terminated:

(a) at the Employer’s initiative because the Employer no longer requires the job done by the Employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.”

[5] 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 did not express any view on the undertaking.

[6] 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.

[7] “United Voice”, the “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)” and the ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)” 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.

[8] 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.

[9] 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 2021.

COMMISSIONER

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