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

Printed by authority of the Commonwealth Government Printer

The applicant, the Australian Workers' Union, sought approval of the D & M Plant Hire Pty Ltd Clerical Enterprise Agreement 2015. The respondent, D & M Plant Hire Pty Ltd, opposed the application. The matter was heard in the Fair Work Commission. The central issue was whether the agreement met the legal criteria for approval under the Fair Work Act 2009. Specifically, the applicant needed to demonstrate that the agreement covered a relevant bargaining unit, was made in good faith, and contained no prohibited content. The respondent argued that the agreement did not fairly represent the interests of the employees and contained provisions that were not in compliance with the Act.

The Commission examined the application to ensure that the agreement was made in good faith and without any coercion, and that it did not contain prohibited content. The Commission also considered the extent to which the agreement fairly represented the interests of the employees. The applicant provided evidence of the bargaining process and the consultation with employees. The Commission found that the agreement was made in good faith and that there was no evidence of prohibited content. The Commission also found that the agreement fairly represented the interests of the employees and met all the legal criteria for approval.

As a result, the Fair Work Commission approved the D & M Plant Hire Pty Ltd Clerical Enterprise Agreement 2015. The Commission found that the agreement met all the legal criteria for approval, including that it was made in good faith and did not contain prohibited content. The Commission also found that the agreement fairly represented the interests of the employees and met all the requirements of the Fair Work Act 2009. The application for approval of the agreement was successful.

D & M Plant Hire Pty Ltd

DECISION

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Legal Principle Established