CoreStaff WA Pty Ltd

[2020] FWCA 4115

[2020] FWCA 4115

FAIR WORK COMMISSION

DECISION

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

CoreStaff WA Pty Ltd
(AG2020/1603)

CORESTAFF WA MINING INDUSTRY ENTERPRISE AGREEMENT 2020

DEPUTY PRESIDENT LAKE BRISBANE, 5 AUGUST 2020

Application for approval of the Corestaff WA Mining Industry Enterprise Agreement 2020 - approval under s 190 – undertakings.

[1] An application has been made for approval of an enterprise agreement to be known as the Corestaff WA Mining Industry Enterprise Agreement 2020 (Agreement). The application was made under s 185 of the Fair Work Act 2009 (Act). It has been made by CoreStaff WA Pty Ltd (Applicant).

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Pursuant to ss 186(6) and 205(2) of the Act, the model dispute resolution term and model consultation term prescribed by the Fair Work Regulations 2009 are taken to be terms of the Agreement.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188, as are relevant to this application for approval, have been met.

[5] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 12 August 2020. The nominal expiry date of the Agreement is 5 August 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE508670  PR721587>

Annexure A

IN THE FAIR WORK COMMISSION

FWC Matter No.:

AG2020/1603

Applicant:

CoreStaff WA Pty Ltd

Undertaking- section 190

I, Ben Jensen, HR Manager of CoreStaff WA Pty Ltd give the following undertakings with respect to the CoreStaff WA Mining Industry Enterprise Agreement 2020 ("the Agreement"):

1. I have the authority given to me by CoreStaff WA Pty Ltd to provide this undertaking in relation to this application before the Fair Work Commission.

2. CoreStaff undertakes to clarify the definition of Shiftworker in Clause 5 is as per the Mining Industry Award 2010, “A Shiftworker means an employee for the time being engaged to work in a system of shifts, being afternoon shifts, night shifts or both, or a continuous shiftworker.” CoreStaff confirms it provides Shiftworkers with an entitlement to 5 weeks of paid annual leave.

3. CoreStaff undertakes to replace Clause 9. of the Agreement with the model term below for dealing with disputes for enterprise agreements as it appears in the Fair Work Regulations Schedule 6.1.

9. DISPUTE RESOLUTION

9.1 If a dispute relates to:

(a) a matter arising under the agreement; or

(b) the National Employment Standards;

this term sets out procedures to settle the dispute.

9.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

9.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

9.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission.

9.5 The Fair Work Commission may deal with the dispute in 2 stages:

(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

9.6 While the parties are trying to resolve the dispute using the procedures in this term:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

9.7 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.

1. CoreStaff accrues paid annual leave progressively during a year of service according to the employee's ordinary hours of work and accumulates it from year to year. If an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

2. CoreStaff accrues an employee's entitlement to paid personal/carer's leave progressively during a year of service according to the employee's ordinary hours of work, and the leave accumulates from year to year.

3. Clause 11.5 shall not apply.

4. Clause 11.8 shall not apply.

5. CoreStaff undertakes to ensure the employee’s total remuneration is more than the employee would have received under the Award, as at the date of approval of this Agreement, for working the same hours; and provide a guarantee that employees will be better off overall over the life of the Agreement when their terms and conditions under the Agreement are compared to the Award as at the date of the approval of this Agreement.

Clauses 15.3, 15.4, 15.5 and 15.6 of the Agreement are to be replaced by the following:

15.3 Where Flat rates are paid to an employee, they will be calculated considering the specific roster pattern that an employee works. The total payments made to the employee for the same designated work cycle and rostered hours of work must be not less than that which the employee would have received if they were a base rate employee and paid in accordance with clause 14.1.

Except as provided under the NES or in any mandatory terms of this enterprise agreement under the Act, the flat rate is received by the employee in satisfaction of and in compensation for any and/or all entitlements to penalty rates, shift loadings, overtime rates, other loadings and allowances which might otherwise apply to the employee

15.4 Prior to beginning an assignment, employees engaged as a flat rate employee will be provided with a detailed calculation demonstrating how their flat rate has been calculated. This calculation will also be provided to:

a) a flat rate employee prior to any change to that employee’s assignment or change to their designated work cycle and/or rostered hours of work in a particular assignment; and

b) a base rate employee before any change is made to pay that employee a flat rate of pay in accordance with clause 14.1 of the Agreement.

15.5 Where a flat rate employee’s employment ends, or they cease to be paid a flat rate, part-way through a designated work cycle, CoreStaff will calculate the amount that would have been payable to the employee (for that part of the designated work cycle) if the employee was a base rate employee and paid in accordance with clause 14.1 of the Agreement. Where that amount is higher than the amount the employee was actually paid for that part of the designated work cycle, CoreStaff will pay the difference to the employee, with timing of payment to be within 72 hours of the employment ceasing or, for an on-going employee, the employee ceasing to be paid a flat rate.

15.6 Employees who are not required to work a designated work cycle or specific roster must be engaged as base rate employees and paid in accordance with clause 14.1 of the Agreement.

1. CoreStaff undertakes that in the case of an employee on an annualised salary, the employees’ wages for each pay cycle will be at least $1 more than all payments to which they would have been entitled to under the Award. A reconciliation will take place each pay cycle to the payment of wages to employees to ensure this clause is adhered to and the employer will make good any shortfall where one is discovered in the payment for that pay cycle to ensure that the aggregate payment is at least $1 more than any payment to which the employee would have been entitled under the Award.

2. Clause 15.8(b) shall not apply.

CoreStaff WA Pty Ltd

Ben Jensen

HR Manager

5 August 2020