Burton Power Pty Ltd

[2019] FWCA 1207

[2019] FWCA 1207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burton Power Pty Ltd
(AG2018/6521)

BURTON POWER PTY LTD ELECTRICAL SUPPLY INDUSTRY QUEENSLAND ENTERPRISE AGREEMENT 2018 - 2021

Electrical contracting industry
COMMISSIONER PLATT	ADELAIDE, 25 FEBRUARY 2019

Application for approval of the Burton Power Pty Ltd Electrical Supply Industry Queensland Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Burton Power Pty Ltd Electrical Supply Industry Queensland Enterprise Agreement 2018 - 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Burton Power Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 February 2019.

[3] On 12 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 13 February 2019. The undertaking deals with the following topics:

•  Where any of the provisions in the Agreement are less beneficial than the National Employment Standards (NES), the NES will prevail.

•  For the purpose of clause 6.12 of the Agreement and the additional week of annual leave, a shift worker is a seven day shift worker who is regularly rostered to work on Sundays and public holidays.

•  For the purpose of clause 5.1.4, the following provision contained in the Electrical, Electronic and Communications Contracting Award 2010 (the Award) will apply:

“(a) Time off must be taken:

(i) within the period of 6 months after the overtime is worked; and

(ii) at a time or times within that period of 6 months agreed by the employee and employer.

(b) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 5.1.4 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.

(c) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (a), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

(d) An employee may, under section 65 of the Act (Request for flexible working arrangements), request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 5.1.4 will apply.

Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).

(e) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 5.1.4 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.”

•  The Junior and Adult Apprentice rates in Schedule 2 of the Agreement are the percentages of the wage rate for the Electrical Level 7 Tradesperson classification.

•  The Junior Apprentice rates in Schedule 2 of the Agreement will apply to junior trainees.

•  The Adult Apprentice rates in Schedule 2 of the Agreement will apply to adult trainees.

[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 31 March 2021.

COMMISSIONER

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