Caylamax Recycling Pty Ltd

[2015] FWCA 3781

[2015] FWCA 3781

FAIR WORK COMMISSION

DECISION

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

Caylamax Recycling Pty Ltd
(AG2015/2340)

CAYLAMAX RECYCLING ENTERPRISE AGREEMENT 2015

Retail industry
COMMISSIONER BULL	SYDNEY, 17 JUNE 2015

Application for approval of the Caylamax Recycling Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Caylamax Recycling Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Fair Work Commission (the Commission) wrote to the applicant on 28 May 2015, with respect to the nominal expiry date of the Agreement, and the Agreement satisfying the better off overall test (BOOT). The General Retail Industry Award 2010 (the Retail Award), the Road Transport and Distribution Award 2010 (the Transport Award), and the Clerks Private Sector Award 2010 (the Clerks Award), are the relevant awards for the purpose of the BOOT.

[3] Correspondence was received from the applicant on 2 and 4 June 2015.

Nominal Expiry Date

[4] The nominal expiry date of the Agreement specified at sub-clause 1.2 of the Agreement is 4 years from the date of commencement of the Agreement. Pursuant to s.186(5) of the Act, the nominal expiry date of an agreement must not be more than 4 years from the date of approval.

Undertaking

[5] At the request of the Commission, the applicant has provided an undertaking amending the nominal expiry date to be 4 years from the date of approval.

Reference to dated legislation

[6] With respect to cl. 3.2- Wage increases, the Commission noted to the applicant, that the clause made reference to dated legislation and previous employment standards which are no longer applicable (Australian Fair Pay & Conditions and Workplace Relations Act 1996).

BOOT

[7] With respect to the BOOT, the Commission noted that the following entitlements under the Agreement were lower when compared to the relevant awards. The Commission requested the applicant demonstrate how employees would be better off overall under the Agreement when they would receive higher entitlements under the relevant awards.

Hours of Work

[8] With respect to cl.4.1 -Hours of Work, the spread of hours is wider for employees who would otherwise be covered by the Retail Award, commencing at 6.30am as opposed to 7am under the Retail Award.

[9] The applicant has provided an undertaking which amends the spread of hours to align with the Retail Award.

Clerical Employees

[10] With respect to employees who would otherwise be covered by the Clerks Award, the Commission was concerned that the 4% increased hourly rate under the Agreement did not adequately compensate for the reduced Saturday overtime rates and public holiday loading.

Undertaking

[11] The applicant has submitted an undertaking which provides that employees will not be rostered to work on public holidays.

Allowances

[12] The Commission noted that the Agreement was silent on a number of allowances which employees would otherwise be entitled to under the relevant awards, namely, first aid allowance, special clothing (which includes a laundering allowance), and meal allowance.

Undertaking

[13] The applicant has provided an undertaking which entitles employees to the above named allowances as applicable under the relevant awards.

[14] Further, in light of the incorporation of allowances as per the relevant awards, the applicant has provided an undertaking to be inserted to the Agreement which incorporates the relevant awards to be read in conjunction with the Agreement.

[15] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[16] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[17] 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.

[18] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 24 June 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[19] This decision should be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code G, AE414203  PR568037>