CPB Contractors Pty Limited

[2021] FWCA 3348

[2021] FWCA 3348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CPB Contractors Pty Limited
(AG2021/5163)

CPB CONTRACTORS PTY LTD COOROY TO CURRA GREENFIELDS AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 10 JUNE 2021

Application for approval of the CPB Contractors Pty Ltd Cooroy to Curra Greenfields Agreement 2021.

[1] An application has been made for approval of a greenfields agreement known as the CPB Contractors Pty Ltd Cooroy to Curra Greenfields Agreement 2021 (the Agreement). The application was made by CPB Contractors Pty Limited pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of s. 172(2)(b) of the Act.

[3] On 24 May 2021 the CFMMEU advised the Commission that it had an interest in the application, requested copies of documentation and indicated that it sought the opportunity to make submissions. On the same day the Commission forwarded the documents and sought from the CFMMEU information on the basis in which it wished to be heard.

[4] The CFMMEU advised the Commission that upon reviewing the material it had concerns that the Agreement did not provide pay and conditions consistent with the prevailing industry.

[5] The matter was listed for mentions and directions on 28 May 2021 where it was established that the CFMMEU was not a bargaining representative but sought to be heard pursuant to the wide discretionary powers of s.590, and that the Commission would benefit from a contradictor. It also submitted that it was likely that its members would be affected by the Agreement if approved. It was clarified that the CFMMEU was not contending that the application required assessment against the prevailing industry pay and conditions, rather that it must meet the better off overall test (BOOT).

[6] Given the wide powers of s.590 the CFMMEU was given the opportunity to file submissions concerning their BOOT concerns for the purpose of the Commission informing itself. Both the Applicant and AWU sought leave to be legally represented and both were granted leave. Directions were forwarded to the parties for the filing of materials, and this decision is made on the papers.

[7] In the intervening period, the Commission forwarded to the parties those matters that it considered required further information and/ or undertakings and both the Applicant and the AWU responded with submissions and the Applicant provided undertakings.

[8] The CFMMEU in their submissions filed on 2 June 2021, noted that the Building and Construction General On-site Award 2020 (the Award) is applicable for the purpose of the BOOT but is not incorporated in the Agreement. It further noted that the Applicant identified two terms less beneficial than the Award and while it agrees with the statement, it submits that there are further less beneficial terms and proceeded to list those terms. The CFMMEU lists the following terms as less beneficial for the purposes of the BOOT and contends that the Agreement fails the BOOT:

a. Ordinary hours- the expansion to the span of hours by one hour in the morning limits the ability for employees to access overtime rates
b. Rostered days off (RDO)- the Agreement does not provide for the payment of a penalty rate when an employee works on a rostered day off, there is no provision for an agreed arrangement in writing for the application of the RDO, there is no protection for an employee from having an RDO on a public holiday and the Agreement contains no provision for the banking of RDOs
c. There is no mobile cranes capacity formula to be added to the weekly rate consistent with clause 19.5 of the Award
d. Allowances- the Agreement omits a range of allowances in clauses 22 and 23 of the Award
e. Overtime and penalty rates- the Agreement omits a range of clauses including the prohibition of employees under 18 working overtime or shifts, overtime payments on Saturday at double time, the provision of transport for employees without transport means after overtime, a 12-hour break after 20 hours worked continuously and the payment of Saturday after Good Friday to be paid at double time and a half if worked.
f. Consultation- the Agreement clause circumvents consultation
g. Apprentices- the Agreement does not prevent apprentices from working overtime and there is no prohibition of a payment by results system
h. Termination of employment- the Agreement does not contain the prohibition that an employer retain more than a week’s wages where an employee has not provided the required period of notice
i. Presenting for work- the Agreement omits clause 19.4 of the Award
j. Living Away from home allowance- the Agreement omits a range of provisions relevant to the living away from home allowance
k. Accident pay- the Agreement does not provide a clause requiring an employer to pay after the termination of employment
l. Payment of wages- the Agreement contains no provision for the payment of wages on the day of termination or within two working days
m. Distant fares and travel- the Agreement contains less beneficial provisions for workers travelling longer distances to the main job site. 1

[9] In response to the submissions of the CFMMEU, the Applicant provided revised undertakings taking into consideration the effect of the Agreement on employees under the age of 18. Other than this one matter, the Applicant contends that the CFMMEU submissions are misconceived. The Applicant contends that the CFMMEU:

a. fails to engage with the specific nature of the project that will be covered by the Agreement (Project);
b. they completely disregard the highly beneficial aspects of the Agreement (not least of which are the significantly higher base rates of pay, which have a flow on effect in respect of setting higher overtime and shift loadings);
c. the submissions complain of particular award loading rates that are omitted from the Agreement, without having any regard to the fact that those loadings operate on much lower Award base rates of pay;
d. in the one instance that the CFMMEU has sought to model a practical monetary comparison of Award and Agreement terms (in respect of regional employees said by the CFMMEU to be disadvantaged by the Agreement) that model is premised on a methodology that is plainly wrong. 2

[10] The Applicant further submits that the CFMMEU has applied a line-by-line analysis rather than the broad BOOT test which requires consideration of the advantages and disadvantages of the Agreement. Relevantly it referred to the Commission’s Full Bench authority of Beechworth. 3 The Applicant addressed each of the CFMMEU itemised concerns in their submissions.

[11] It is not necessary to repeat the submissions of the Applicant in response, suffice to say that each concern was addressed by detailing the correct application of the Agreement in comparison to the relevant Award condition, and consistent with the Commission’s analysis employees to be covered by the Agreement will be better off than the Award. In relation to certain conditions contained in the CFMMEU list, the Applicant applied the particulars of the project which demonstrate that the concerns of the CFMMEU are immaterial (for example clause 19.4 of the Award, accident pay, distance travel and living away from home). The Commission finds no issue with the Applicant’s submissions and it is consistent with the Commission’s analysis and considerations. The concern regarding notice is of no importance as the Agreement only requires one weeks’ notice from an employee and therefore the capacity to deduct payment for notice where the notice is not given cannot be applicable to the periods of notice required by the employer. Nor is there a concern that the payment of wages is of consequence to the BOOT.

[12] On the matter of consultation, the CFMMEU submit that clause 3.2 circumvents the obligation to consult where employees are stood down. Clause 3.9 dealing stand down is not inconsistent with the Act in providing a right to stand down an employee that cannot be usefully employed due to industrial action. The clause further provides for consultation where an employee cannot be usefully employed and for which the employer cannot be reasonably held responsible, the steps may require consultation, however, the clause states that ‘once steps i and ii have been taken, the Employer has the right to stand down the employee without pay.’ The right to stand down is conditional on consultation and the employer taking all reasonable steps to explore options for work to continue.

[13] The Agreement lodged contained numbering errors at clause 3.9. As a result, my chambers invited the Applicant to provide a replacement page to correct the numbering. On 10 June 2021, the Applicant filed an amended page 18 of the Agreement correcting the errors. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[14] The Applicant provided revised undertakings incorporating a matter raised by the CFMMEU concerning employees under the Age of 18, together with the matters raised by the Commission. The AWU supports the submissions of the Applicant and the undertakings submitted.

[15] The rates of pay under the Agreement are between 50.36% - 66.26% above Award rates. Modelling conducted on an employee working a 50-hour week is better off overall, and the modelling takes into account the 36-hour week. The rates of pay are high enough to compensate for reductions in Award conditions. Having conducted an analysis of the Agreement, performed modelling and having considered the submissions of the parties together with the undertakings provided, I am satisfied that there are no BOOT concerns.

[16] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that The Australian Workers’ Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[17] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. The undertakings are taken to be a term of the Agreement.

[18] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with The Australian Workers’ Union and that the Agreement covers this organisation.

[19] The Agreement is approved and, in accordance with s.54, will operate from 17 June 2021. The nominal expiry date of the Agreement is 9 June 2025.

COMMISSIONER

Annexure A

 1 Submissions of the CFMMEU at [5].

 2 Submissions of the Applicant at [4].

 3   Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery [2017] FWCFB 1664 at [12].

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