Butlers Concrete Constructions Pty Ltd

[2020] FWCA 5837

[2020] FWCA 5837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Butlers Concrete Constructions Pty Ltd
(AG2020/3046)

BUTLERS CONCRETE CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2020 - 2024

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 2 NOVEMBER 2020

Application for approval of the Butlers Concrete Constructions Pty Ltd Enterprise Agreement 2020 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the Butlers Concrete Constructions Pty Ltd Enterprise Agreement 2020 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Butlers Concrete Constructions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] A number of matters were identified, and responses and undertakings sought from the Employer. The Applicant provided responses and undertakings on 29 October 2020. I listed the matter for eHearing on 30 October 2020 and advised that any person wishing to be heard in this matter should contact my at least one hour prior to the abovementioned time and the matter would be listed for an attendance hearing. No interested parties contacted my Chambers at any stage.

[3] I note that the Notice of Employee Representational Rights (the NERR) provided by the Applicant referred only to work performed in New South Wales, Queensland, and the Australian Capital Territory. This is inconsistent with the Agreement provides for a broader range of work to be done within Australia with no restriction as to which States or Territories are covered by the Agreement. The Applicant submitted that all employees covered by the Agreement currently work in Queensland, and that the scope of the agreement was widened when discussing the Agreement with employees. The Applicant submitted that no employee will be disadvantaged by the change in scope, nor does the change fall into any of the categories of potential disadvantage noted at [74]–[76] of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318. Having considered the Applicant’s submissions, I am satisfied it is appropriate to exercise my discretion under s.188(2) in relation to this issue as the error in the NERR is a minor procedural or technical error within the scope of s.188(2).

[4]   I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES): 

● Clause 19.1 – Annual leave;

● Clause 20.3(a) – Personal leave.

[5] However, noting clause 6.1 of the Agreement and the undertakings provided in relation to the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement and as Annexure A to this Decision.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 November 2020. The nominal expiry date of the Agreement is 2 November 2024.

COMMISSIONER

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Annexure A.