Buildsafe Australia Pty Ltd

[2023] FWCA 3887

[2023] FWCA 3887 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Buildsafe Australia Pty Ltd

(AG2023/3624)

BUILDSAFE ENTERPRISE AGREEMENT (VICTORIA) 2023

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 21 NOVEMBER 2023

Application for approval of the Buildsafe Enterprise Agreement (Victoria) 2023

1. An application has been made for approval of an enterprise agreement known as the Buildsafe Enterprise Agreement (Victoria) 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Buildsafe Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 October 2023.

1. The notification time for the Agreement under s.173(2) of the Act was 6 June 2023 and the Agreement was made on 22 September 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions and the better off overall test (BOOT), which commenced on 6 June 2023 apply to this approval application.[1]

1. Section 193 of the Act relevantly provides, for the purposes of the BOOT, that the Commission must be satisfied, at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.

1. The relevant awards applicable to this application are the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award) and the Building and Construction General On-Site Award 2020 (Building Award). In applying the BOOT the Commission is required by s.193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial.  In making that assessment, the Commission may have regard to the patterns of work that are reasonably foreseeable at the time of the application.

1. In considering whether the BOOT is met, the following concerns were identified regarding the span of ordinary hours provided by clause 30.1 of the Agreement; casual minimum engagement provided by clause 10.3(c)(i); meal allowances provided by clause 22.5; rates of pay for performance of higher duties provided by clause 23; Saturday penalty rates provided by clause 36; Casual overtime provided by clause 37.4; afternoon shift ordinary hours and relevant penalty rates provided by clause 9(c); and, allowances provided by Schedule 3. Specifically in relation to the Manufacturing Award, a concern was identified regarding the overtime of part-time employees provided by clause 37.1 of the Agreement. Furthermore, specifically in relation to the Building Award concerns were identified regarding several classification’s rates of pay; maximum daily hours provided by clauses 30.3 and 37.4; 50-hour building model and casual penalty rates provided by Schedule 2 of the Agreement.

1. The Commission also identified anomalies in the Form F17B relating to the number of casual employees who voted and were entitled to vote. On 31 October 2023 the Employer provided submissions clarifying the number of casual employees entitled to vote. Accordingly, I am satisfied the casual employees who voted were entitled to vote.[2]

1. The Applicant provided written submissions and undertakings on 31 October 2023. Considering these materials, further analysis was performed by the Commission, and I directed my Chambers on 13 November 2023 to seek further clarification in relation to the maximum daily hours and overtime provisions for casual employees under the proposed Agreement. 

1. The Applicant provided an updated series of written undertakings dated 17 November 2023, and a copy is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the BOOT, I have had regard to each of the matters in s.193A(2)-(7). I note there are no Union Bargaining Representatives, and no views expressed by the Employee Bargaining Representatives for the purposes of s.193A(6A).

1. I note that Clause 41.4 of the Agreement provides that an employee must notify the employer of an absence on personal/carer’s leave at least 2 hours before they would have commenced work. This appears inconsistent with s.107 of the Act which provides that notice must be given as soon as practicable which may be a time after the leave has started. However, given the National Employment Standards (NES) precedence clause at Clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date of the Agreement is 20 November 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] See Appeal by Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599

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