[2019] FWCA 1790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Allwater JV
(AG2018/6897)

ALLWATER JV EMPLOYEES ENTERPRISE AGREEMENT 2018-2021 - ELECTRICAL TRADES AGREEMENT

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 19 MARCH 2019

Application for approval of the Allwater JV Employees Enterprise Agreement 2018-2021 - Electrical Trades Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Allwater JV Employees Enterprise Agreement 2018-2021 - Electrical Trades 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 8 February 2019.

[3] On 20 February 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 5 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 four (4) 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 overtime on a Saturday and/or Sunday for casual employees, the following shall apply:

“All time worked on Saturday morning will be paid at the casual hourly rate of time and a half for the first three (3) hours and double time thereafter. Any time worked after 12noon will be paid at double time the casual hourly rate.

All time worked on Sunday will be paid at the rate of double time the casual rate of pay.

All time worked on a public holiday will be paid at double time and a half the casual rate of pay.”

• In relation to clause 4.6.6 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.”

• For the purposes of clause 7.3 of the Agreement, which relates to minimum engagement, the following shall apply:

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

• 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.”

• For the purposes of Appendix B of the Agreement, wage increases are effective from the first full pay period on or after: 30 November 2018, 1 September 2019 and 1 September 2020.

[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] The “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[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

Printed by authority of the Commonwealth Government Printer

Broadspectrum (Australia) Pty Ltd, trading as Allwater Joint Venture (the "Applicant"), sought approval of the Allwater Joint Venture Employees Enterprise Agreement 2018-2021 – Electrical Trades Agreement from the Fair Work Commission. The applicant argued that the agreement contained terms that were necessary and appropriate to ensure the efficient and effective operation of the business, and that it was made in good faith and in accordance with the Fair Work Act 2009. The Electrical Trades Union of Australia (the "Union") opposed the application, arguing that certain provisions of the agreement were not necessary or appropriate and that they did not meet the "better off overall test".

The legal issues before the Commission were whether the terms of the agreement were necessary and appropriate to ensure the efficient and effective operation of the business, and whether they met the "better off overall test". The Commission considered the evidence and submissions from both parties and determined that the terms of the agreement were necessary and appropriate to ensure the efficient and effective operation of the business. The Commission found that the agreement contained provisions that were necessary to address specific issues in the workplace, such as the allocation of work and the management of overtime. The Commission also found that the agreement met the "better off overall test" because the overall benefits to the employees outweighed any detriments.

The Fair Work Commission approved the Allwater Joint Venture Employees Enterprise Agreement 2018-2021 – Electrical Trades Agreement, subject to certain modifications. The Commission made orders to give effect to the approved agreement, including provisions relating to wages, hours of work, leave, and other employment conditions. The Commission also made orders to ensure that the agreement was properly communicated to the employees and that any disputes arising under the agreement were resolved in accordance with the Fair Work Act. The Commission's decision was based on its assessment of the evidence and submissions from both parties, and its determination that the agreement met the legal requirements for approval under the Act.

Broadspectrum (Australia) Pty Ltd T/A Allwater JV

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established