City Wide Glass & Aluminium Pty Ltd T/A City Wide Glass & Aluminium Pty Ltd

[2011] FWA 1127

[2011] FWA 1127

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City Wide Glass & Aluminium Pty Ltd T/A City Wide Glass & Aluminium Pty Ltd
(AG2010/14720)

CITY WIDE GLASS & ALUMINIUM PTY LTD ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 22 FEBRUARY 2011

City Wide Glass & Aluminium Pty Ltd Enterprise Agreement 2010.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for the approval of the City Wide Glass & Aluminium Pty Ltd Enterprise Agreement 2010. (the Agreement). Fair Work Australia (the Tribunal) wrote to the Applicant’s representative on 11 November 2010 seeking an explanation in relation to a number of matters in order for the Tribunal to determine whether or not the agreement should be approved and whether or not it met the Better Off Overall Test (BOOT).

[2] The Tribunal received a response dated 16 January 2011 setting out a response to the Tribunal’s correspondence of 11 November 2010.

[3] After considering the response from the Applicant, the Tribunal makes the following observations.

[4] In relation to Clause 28, consultation, this clause does not provide for representational rights in accordance with the Act.

[5] There is reference to employee representational rights under clause 29.2 but that is only in the event of a grievance or dispute and, in the Tribunal’s view, does not appear to reflect the intention of the consultation terms as specified in the Act.

[6] In relation to the reference to a 60 hour week average cycle at clause 36.9, the Tribunal has been advised that this was an error and should have been 50 hours, consistent with clause 34.3.

[7] Whilst clause 36.9 can be amended with an undertaking, the following calculations indicate that hours worked in excess of 50, to a maximum of 60 hours as per clause 36.6, would not be sufficiently offset by other terms so as to satisfy the BOOT.

[8] The following calculations compare the agreement provisions to those contained in the modern award, (including applicable transitional provisions). These tables demonstrate that depending on the work obligations of the employee, an employee may not be better off overall.

[9] More specifically if:

(a) the swing scaffold allowance was applicable to the worksite; and

(b) additional hours in excess of 50 hours per six month cycle are worked

Table 1: this table demonstrates the effect of the agreement’s terms where an employee worked 50 hours a week, compared to the equivalent calculable award provisions.

Table 2: this table includes the effect of applying the swing scaffold allowance to the entitlements calculated at Table 1.

Table 3: this table examines the effect of the terms of the agreement if 60 hours are worked.

Table 1

CW 2 (50 hours)

Agreement CW 2	$27.00	Award CW 2	$18.35
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	50	100%	$1,350.00	Ordinary rate	38	100%	$697.30
$0.00	Overtime Mon - Fri	6	150%	$165.15
$0.00	Overtime Saturday	2	150%	$55.05
$0.00	Overtime Saturday thereafter	4	200%	$146.80
$0.00	OT Meal Allowance	4	$12.00	$48.00
$0.00	Daily fares	5	$16.50	$82.51
Multi storey	38	$0.63	$23.94
Annual leave loading	1	$10.50
$0.00	Personal leave	1	$32.18
Redundancy	2.05	100%	$37.62
Total			$1,350.00	Total			$1,299.04
Award Total Weekly Rate			$1,299.04
Agreement Total Weekly Rate			$1,350.00
Percentage Difference			3.92%	$50.96

Table 2

CW 2 (50 hours including swing scaffold)

Agreement CW 2	$27.00	Award CW 2	$18.35
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	50	100%	$1,350.00	Ordinary rate	38	100%	$697.30
$0.00	Overtime Mon - Fri	6	150%	$165.15
$0.00	Overtime Saturday	2	150%	$55.05
$0.00	Overtime Saturday thereafter	4	200%	$146.80
$0.00	OT Meal Allowance	4	$12.00	$48.00
$0.00	Daily fares	5	$16.50	$82.51
Multi storey	38	$0.63	$23.94
Swing scaffold first 4 hours	5	$6.22	$31.10
Swing scaffold thereafter	18	$1.26	$22.68
Annual leave loading	1	$10.50
$0.00	Personal leave	1	$32.18
Redundancy	2.05	100%	$37.62
Total			$1,350.00	Total			$1,352.82
Award Total Weekly Rate			$1,352.82
Agreement Total Weekly Rate			$1,350.00
Percentage Difference			-0.21%	-$2.82

Table 3

CW 2 - 60 hours excluding swing scaffold

Agreement CW 2	$27.00	Award CW 2		$18.35
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	50	100%	$1,350.00	Ordinary rate		38	100%	$697.30
50 to 60 hours	10	115%	$310.00	Overtime Mon - Fri		6	150%	$165.15
$0.00	Overtime Saturday		2	150%	$55.05
$0.00	Overtime Saturday thereafter		4	200%	$146.80
50 - 60 hours thereafter		10	200%	$367.00
$0.00	OT Meal Allowance		4	$12.00	$48.00
$0.00	Daily fares		5	$16.50	$82.51
Multi storey		38	$0.63	$23.94
Annual leave loading		1	$10.50
$0.00	Personal leave		1	$32.18
Redundancy		2.05	100%	$37.62
Total			$1,660.00	Total				$1,666.04
Award Total Weekly Rate			$1,666.04
Agreement Total Weekly Rate			$1,660.00
Percentage Difference			-0.36%	-$6.04

[10] In relation to compassionate leave, the Applicant has stated “the Agreement has allowed for employees to take at least one period of two days every year” with an increase in the hourly rate of pay compensating for any absences thereafter.

[11] Subdivision C s104 of the Act specifies that an employee is entitled to 2 days of compassionate leave for each permissible occasion as defined. Whilst the Tribunal is unable to find the entitlement referred to by the Applicant, it would be for the Tribunal to determine that the Agreement does not comply with the compassionate leave entitlement under the Act.

[12] In relation to cashing out of annual leave, the Applicant has responded that the Agreement at clause 39 does not cash out annul leave but rather it progressively pays annual leave out in advance.

[13] The Tribunal considers that the provision provided for in the proposed agreement, that is, the loading up of the hourly rate to include payment for annual leave is a form of cashing out and does not comply with sections 92 and 93 of the Act and, in the Tribunal’s view, is in contravention of the National Employment Standards in relation to cashing out annual leave.

[14] Given all that the Tribunal has stated above, the Tribunal cannot be satisfied that the Agreement meets the BOOT. In addition, the Agreement does not comply with sections 92 and 93 of the Act. Accordingly, the Agreement is rejected and will not be approved.

COMMISSIONER

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