Civil & Allied Technical Construction Pty Limited T/A Catcon
[2023] FWCA 2334
•27 JULY 2023
| [2023] FWCA 2334 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Civil & Allied Technical Construction Pty Limited T/A Catcon
(AG2023/2194)
CATCON SOUTH AUSTRALIAN GENERAL WORKS WORKPLACE AGREEMENT 2023 - 2026
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 27 JULY 2023 |
Application for approval of the CATCON South Australian General Works Workplace Agreement 2023-2026
An application has been made for approval of an enterprise agreement known as the Catcon South Australian General Works Workplace Agreement 2023 - 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Civil & Allied Technical Construction Pty Limited T/A Catcon (the Applicant). The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 5 June 2023 and the Agreement was made on 29 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].
Correspondence was sent to the Employer by my Chambers on 19 July 2023 raising concerns including that the Agreement at clause 23.5.1 states that part-time employees shall receive Family and Domestic Violence Leave, however part-time employees are not mentioned anywhere else within the Agreement. If part-time employees can be employed under the Agreement, they appear to not be better off overall as they do not receive their specific entitlements under clause 11 of the Award. It is noted that the F17 form stated there were no part-time employees currently employed by the employer.
It was also raised that the Agreement is silent on shift penalties and does not appear to make any references to shift work. If employees do work shifts, rates of pay may not be high enough to compensate for the lack of penalties as per clause 17.2 of the Award.
The Employer responded on 19 July 2023 advising that the Applicant does not engage any part time employees and they do not intend to engage any part time employees during the term of the proposed agreement. The Applicant also advised they do not currently engage any shift workers and do not intend to employ any shift workers during the term of the proposed agreement.
I am consequently satisfied that per s. 193A(6A) of the Act part time and shift work are not types of employment that are reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.
I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.
DEPUTY PRESIDENT
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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