D & M Plant Hire Pty Ltd

[2015] FWCA 8728

[2015] FWCA 8728

FAIR WORK COMMISSION

DECISION

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

D & M Plant Hire Pty Ltd
(AG2015/6088)

D & M PLANT HIRE PTY LTD CLERICAL ENTERPRISE AGREEMENT 2015

Clerical industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 DECEMBER 2015

Application for approval of the D & M Plant Hire Pty Ltd Clerical Enterprise Agreement 2015

[1] An application has been made by D & M Plant Hire Pty Ltd (the applicant) for the approval of an enterprise agreement known as the D & M Plant Hire Pty Ltd Clerical Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all employees engaged by the employer, other than on-site construction or salaried employees. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational distinction of the employees.

[3] On 26 November 2015, the Commission wrote to the applicant with respect to the overtime provisions contained in the Agreement at cl.7.2 – Additional Hours/Overtime. Under cl.7.2 of the Agreement it states that “additional hours will be paid at the ordinary time rate prescribed in cl.6.1 up to 50 hours per week”.

[4] Under the Clerks Private Sector Award 2010 (the Award), being the relevant reference instrument for the purposes of the better off over all test (BOOT) as required under s.186 of the Act, employees are entitled to penalty loading of time and a half for the first 2 hours and double time thereafter, if outside the span of hours or in excess of 38 hours per week.

[5] The applicant was requested to address the Commission on how the Agreement satisfied the BOOT given that the overtime provision is triggered under much more limited circumstances than the Award.

[6] On 26 November 2015, the applicant advised that the indicative hours of work for employees engaged by the applicant is 40 hours per week Monday to Friday and that the provisions of the Agreement have been drafted to provide for a flat rate of pay up to 50 hours per week to cover exceptional circumstances. The applicant in its submission provided a number of indicative rosters and wage rate comparisons to demonstrate that employees were still better off under the Agreement.

Conclusion

[7] Taking into account the higher rates of pay under the Agreement and the submissions provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 29 December 2015. The nominal expiry date of the Agreement is 31 October 2018.

DEPUTY PRESIDENT

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