Cement Australia Pty Limited

[2016] FWCA 8911

[2016] FWCA 8911

FAIR WORK COMMISSION

DECISION

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

Cement Australia Pty Limited
(AG2016/6339)

CEMENT AUSTRALIA PTY LTD TRANSPORT EMPLOYEES (NSW) ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 15 DECEMBER 2016

Application for approval of the Cement Australia Pty Limited Transport Employees (NSW) Enterprise Agreement 2016

[1] An application has been made by Cement Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Cement Australia Pty Limited Transport Employees (NSW) Enterprise Agreement 2016 (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 Agreement covers employees of the applicant who are employed as tanker operators in NSW and the ACT. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The Transport Workers’ Union (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

Redundancy pay

[4] The Commission wrote to the applicant noting that clause 15.6(b) of the Agreement provides an entitlement to redundancy pay for employees with at least 1 but less than 2 years of service that is less than the entitlement under the National Employment Standards (NES). Pursuant to s.55(4) of the Act, an agreement may not include a term which is detrimental when compared with the NES.

[5] The applicant has provided an undertaking amending this clause so that the affected employees would receive the same redundancy pay as they would under the NES.

Public Holidays

[6] Clause 34 of the Agreement provides that when an employee is absent for work on the working day immediately before or immediately after a public holiday without reasonable excuse or consent of the employer, the employee will not be entitled to payment for the unworked public holiday.

[7] The Commission wrote to the applicant noting that this clause appears to be less than the entitlement under the NES at s.116 of the Act, which states that if an employee is absent on a public holiday, the employee must be paid at the base rate of pay for the ordinary hours of pay on that day.

[8] The applicant has provided an undertaking to remove clause 34 of the Agreement.

Carers leave

[9] The Commission wrote to the applicant, noting that for the purpose of carer’s leave in the NES, ‘household’ is not defined. The Commission was concerned that the definition of ‘household’ at clause 35.2(b) of the Agreement may impose a limit on an employee’s entitlement to carers leave which is not contemplated by the NES.

[10] To ensure that such a scenario does not eventuate, the applicant has undertaken that the entitlement to carer’s leave will be no less than that provided for by the NES.

Typographical error

[11] The Commission wrote to the applicant noting that second paragraph of Clause 19(c) contains what had been identified as a possible typographical error. It was suggested to the applicant that the clause should read as follows:

“If the leave period is less than a full day, the pay rate for that absence will be based on an hourly rate determined by dividing their normal hourly daily pay rate by 12 if on a 12 Hour Roster, and multiplying by the number of hours of absence. The pay rate for the remainder of the day would then make up the difference between the leave pay and the normal rate for that day.”

(My correction)

[12] The applicant responded to the Commission, confirming that a typographical error had been made in the Agreement.

Better off overall test (BOOT)

[13] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are overall more beneficial than under the Road Transport Distribution Award 2010 (the Award), which is the relevant instrument for the purposes of the BOOT. The Agreement does not provide annual leave loading or weekend or shift penalties, however, full time employees receive an annualised salary outlined in Schedule 1A in compensation for shift penalties, weekend penalties and overtime entitlements up to the completion of the ordinary hours of work for their nominated roster. Rates under the Agreement are at least 57.26% above the base Award rates for full time employees and vary depending on the type of work engaged in the roster.

[14] Rates of pay for part time and casual employees are 35.58% to 37.61% above the base rates of pay in the Award.

[15] The agreement is largely silent on conditions for casual and part time employees apart from specifying their public holiday entitlements. Given other entitlements are not provided explicitly for these employees, the Award entitlements would be granted to these employees by way of Clause 6 which states that the Agreement will be read in conjunction with the Award.

Conclusion

[16] Taking into account the significantly higher base rates of pay under the Agreement, and balancing this benefit with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[17] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. 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.

[18] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[19] 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.

[20] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

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Annexure A