Career Boss Commercial Pty Ltd

[2018] FWCA 3897

[2018] FWCA 3897

FAIR WORK COMMISSION

DECISION

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

Career Boss Commercial Pty Ltd
(AG2018/20)

CAREER BOSS COMMERCIAL ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 29 JUNE 2018

Application for approval of the Career Boss Commercial Enterprise Agreement 2017.

Introduction

[1] Application has been made by Career Boss Commercial Pty Ltd (Career Boss) s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Career Boss Commercial Enterprise Agreement 2017 (the Agreement). The Agreement is intended to operate to the exclusion of the Building and Construction General On-site Award 2010 1 (the Award).

[2] Career Boss is a building and construction company providing labour to commercial multi-storey building sites in metropolitan Perth and surrounds.

[3] After the application was approved on 31 January 2018 2, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), who was not a bargaining representative for the Agreement, appealed the approval decision. A Full Bench of the Commission quashed the approval decision after accepting that the Agreement did not pass the better off overall test. The matter was then remitted on the basis that it be determined anew.3

[4] Further undertakings have now been given by Career Boss in relation to the Agreement. On 25 May 2018, 26 June 2018 and 29 June 2018, the CFMMEU had the opportunity to give their views on the undertakings provided. The application was heard on Tuesday 26 June 2018.

[5] This decision deals with the application having regard to the Full Bench decision.

Consideration

[6] Section 193(1) of the Act provides as follows:

“193(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[7] The Agreement provides some more beneficial entitlements compared to the Award including rates of pay, shift penalties for some types of work, some allowances and inclement weather terms.

[8] The Agreement also provides a range of less beneficial entitlement compared to the Award:

•  Meal allowance is only payable to employees not notified of the requirement to work overtime the day before. 4

• Crib breaks are dealt with differently in the Agreement and the Award. 5
• Clause 15.5 of the Agreement provides for afternoon and night shift loading of 150% for work on Monday to Friday, while clause 10.3 provides for overtime to be paid at the rates of 150% and 200% respectively. The Full Bench construed these inconsistent terms as limiting afternoon and night shift payments to 150% for all hours worked (whether ordinary hours or overtime). 6

•  There is no minimum engagement for weekend overtime and work on public holidays.

•  The Agreement is broadly expressed to cover a range of work in the building and construction industry but does not provide for a number of Award allowances, including “specialist allowances” in clause 21 of the Award, reimbursement of travelling expenses in clause 24.7 of the Award. The multi-storey allowance in the Agreement applies in a narrower set of circumstances than in the Award.

•  ‘Redundancy’ is not defined in the Agreement and the ordinary meaning of redundancy would necessarily be narrower than that contained in clause 17 of the Award, which defines redundancy as any situation where employment comes to an end (except misconduct or refusal of duty).

•  The Agreement does not ensure that employees who become adult apprentices do not suffer a reduction in income at that time, as per clause 19.8(a) of the Award. 7

[9] I am satisfied that the undertakings now given by Career Boss are necessary to deal with the concerns identified above, having regard to the earlier addressed concern that the Agreement will not otherwise pass the better off overall test. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement.

[10] The CFMMEU accepts that the undertakings address its concerns in relation to the better off overall test. However, it says the undertakings cannot be accepted because they will result in substantial change to the Agreement.

[11] The Agreement is a comprehensive document which to a large degree reflects the terms of the Award. The various omissions identified likely reflect the view of Career Boss that the subject matter was not relevant to its business, given the discrete part of the industry in which it operates. However, there is nothing to prevent it from expanding its interests in the future and the needs of prospective employees also need to be considered having regard to the broad scope of work covered by the Agreement.

[12] The undertakings supplement existing provisions of the Agreement in a way that aligns with the Award. I consider that the undertakings do not constitute a wholesale reshaping of the Agreement. I am satisfied that the undertakings will not result in substantial changes to the Agreement.

[13] The views of each of the bargaining representatives for the Agreement have been sought in relation to the undertakings proposed by Career Boss. No concerns in relation to the undertakings were expressed.

[14] Career Boss has provided information about what employees were told when the employer explained the Agreement to employees. On the material before me, I am satisfied that the terms of the Agreement, and the effect of those terms, were explained to employees and that there are no other reasonable grounds for believing that the Agreement was not genuinely agreed.

Conclusion

[15] Subject to the undertakings at Annexure A, I am also satisfied that each of the remaining requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have now been met.

[16] Career Boss seeks to amend clause 9 of the Agreement to remove a redundant cross-reference to “clause 12 (“Assignment Terms and Conditions”)”. I will allow the amendment under section 586 of the Act.

[17] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2018. The nominal expiry date of the Agreement is 28 June 2022.

COMMISSIONER

Annexure A

 1   MA000020

 2   [2018] FWCA 633

 3   [2018] FWCFB 633 (the Full Bench Decision)

 4   [2018] FWCFB 2620, [12]-[13]

 5   [2018] FWCFB 2620, [16]

 6   [2018] FWCFB 2620, [14]

 7   Submissions filed by the CFMMEU on 24 May 2018, Attachment A.

Printed by authority of the Commonwealth Government Printer

<AE429051  PR608626>