DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2019/4237)

BROADSPECTRUM WA DEFENCE BASE TRANSPORT ENTERPRISE AGREEMENT 2019

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 25 NOVEMBER 2019

Application for approval of the Broadspectrum WA Defence Base Transport Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum WA Defence Base Transport Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 12 November 2019.

[3] On 19 November 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 through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 22 November 2019. The undertaking deals with the following topics:

• Casuals are not excluded from long service leave entitlements, subject to the relevant Act in Western Australia.

• When an employee has been absent for 5 days or more without consent or notification, the employer will take reasonable steps to contact the employee, provide the employee with an opportunity to explain the absence and give genuine consideration to any response prior to taking any action. Notice will be provided as per the National Employment Standards.

• Clause 10.5 will not apply, insofar as it permits the employer to not make severance payments in the absence of an order from the Fair Work Commission under s.120 of the Act.

• Employees will be entitled to observe additional public holidays, as gazetted in Western Australia.

• Annual leave loading will be paid on the proportionate amount of annual leave payable upon termination of employment.

• Employees absent on a public holiday will be entitled to payment at their ordinary hours of work on that day.

• Personal leave will accrue progressively according to an employee’s ordinary hours of work.

• An employee is able to take carers leave to care for a person, even where another person has taken leave to care for the same person.

• The minimum engagement of a casual employee will be 4 hours.

• All shift workers at Campbell Barracks will receive a 30% shift loading on ordinary hours of work, Monday to Friday, as per clause 16.4. For work outside ordinary hours, Monday to Friday, the rate of time and a half will apply for the first two hours and double time thereafter. All hours worked on Saturdays will be paid at time and a half for the first two hours and double time thereafter. All hours worked on a Public Holiday will be paid at double time and a half. Any additional shifts outside of the normal 12 hour 4:4 off roster shall be paid in accordance with clause 17.1.

• In relation to shift workers, ordinary hours of work will be at any time during Monday to Friday up to 7.6 hours per day. Afternoon shift means a shift finishing after 6.30pm but not later than 12.30am and night shift means a shift which finishes after 12.30am and at or before 8.30am.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative 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 Transport Workers’ Union of Australia, 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 24 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, filed an application for the approval of the Broadspectrum WA Defence Base Transport Enterprise Agreement 2019. The application was heard in the Fair Work Commission, where the central issue was whether the agreement met the requirements for approval under the Fair Work Act 2009. The dispute arose from concerns that the proposed agreement did not adequately address the needs of certain employees, specifically those in the transport sector working at defence bases in Western Australia.

The legal issues before the Commission included whether the agreement was genuinely bargained, free from coercion, and provided a safety net for employees. The Commission had to assess if the agreement covered all necessary terms and conditions of employment, including pay and conditions, and if it provided a minimum safety net that aligned with the relevant awards and national employment standards. Additionally, the Commission considered whether the agreement adequately facilitated the efficient operation of the business while also protecting employee interests.

In delivering the decision, the Commission examined the evidence and submissions from both Broadspectrum and the Australian Council of Trade Unions. The Commission found that the agreement was genuinely negotiated and did not involve any form of coercion. It also determined that the agreement provided a comprehensive set of terms and conditions, including provisions for pay rates, leave entitlements, and other employment conditions. Furthermore, the Commission concluded that the agreement established a safety net that met the statutory requirements and facilitated the efficient operation of Broadspectrum's business. Based on these findings, the Commission approved the Broadspectrum WA Defence Base Transport Enterprise Agreement 2019.

The final orders of the Commission included the approval of the enterprise agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by its terms. The decision affirmed the validity of the agreement, ensuring that it would govern the employment conditions of the affected workers until such time as a new agreement is negotiated and approved.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established