Downer EDI Mining Pty Ltd

[2019] FWCA 2783

[2019] FWCA 2783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Mining Pty Ltd
(AG2019/653)

DOWNER EDI MINING MEANDU MINE ENTERPRISE AGREEMENT 2019

Mining industry
COMMISSIONER LEE	MELBOURNE, 24 APRIL 2019

Application for approval of the Downer EDI Mining Meandu Mine Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Mining Meandu Mine Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Downer EDI Mining Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Parameters of the Aggregated Annualised Wage

[3] Clause 3.1.1 of the Agreement provides for Aggregated Annualised Wages which are paid to employees (other than casuals) for the purposes of providing employees with a consistent income from week to week. The Agreement did not provide what these wages were. Accordingly, I raised this with the Applicant, to which I received the following submissions:

● The Agreement defines the “Aggregated Annualised Wage” to mean “the amount the Employee would have earned by virtue of their roster including any respective allowances, excluding the Attendance Bonus.”

● Specifically the calculation of aggregated annualised wages (in accordance with clause 3.1.3) includes:

● Base Hourly Rates of pay – Clause 3.1.7 lists the Classifications / Applicable Base Hourly Rates

● Shift allowances - Clause 3.4.2. sets out the shift allowances

● Trade allowance - Clause 3.4.3

● Rostered overtime – defined as overtime, which forms an integral part of the Employee’s roster of regular work pattern, which the Employee is required to work and which is paid in accordance with Clause 4.3.3; and

● Other allowance, bonus or penalty (unless otherwise provided for elsewhere in this Agreement) – Clause 3.4.1. sets out weekend penalties (as penalties paid for ordinary hours)

● The Agreement sets out further rules which determine how the aggregated annualised wages are calculated, including:

● Public holidays - Clause 5.9 set out the rules applying to public holidays but not a rate of payment (Downer apply the equivalent of triple time)

● Additionally, Clause 3.1.5 – provides that the annualised aggregated wage is governed by the actual roster worked and will change accordingly if the roster changes.

● Finally, Clause 4.1.1 provides that the “ordinary hours will not exceed an average of 35 per week over the roster cycle with ten (10) being the maximum ordinary hours applied to any one shift.   For the purposes of determining and calculating shift and weekend penalty rates, the shift will be deemed to have all been worked on the day and shift as nominated in the shift roster.”

Calculation of the Aggregated Annualised Wage

● Cumulatively, these clauses create parameters for the calculation of the aggregated annualised wages as set out in the below steps:

1. Determine the ordinary hours for a particular roster pattern:

The most common roster pattern at Meandu is one of rotating days and nights worked and not worked as follows: 5/4, 4/5, 5/5, 5/4, 4/5, 5/5 for 12.5 hour shifts.  This pattern (and all ‘even-time’ patterns) equate to ten (10) ordinary hours and is considered a ‘continuous’ roster pattern;

2. The Aggregated annualised wage is then calculated for the example above by applying the base hourly rate (BHR) as follows:

a. 10 ordinary hours multiplied by the BHR

b. 2.5 hours at the overtime rate of 100% (double time)

c. An additional Saturday penalty of 50% applied for the first 4 hours and 100% for the remaining ordinary hours (then overtime as listed above)

d. An additional Sunday penalty of 100% for all ordinary hours (then overtime as listed above)

In Downer’s method these entitlements are added to produce equivalent ordinary hours – in this case 61.50/week.  Night Shift penalties, payment for the public holidays and the bonus are added as separate items in the calculator as follows:

e. An additional night shift allowance of 15% applied to all 12.5 hours for half of the shifts worked

f. Public holidays (less Christmas Day and Boxing Day – which are non-working day) are averaged evenly based on the pattern and paid at the equivalent of triple time for scheduled working days or at ordinary hours at the BHR for rostered off days

3. A further payment, equivalent to $100/shift is paid as an Attendance Bonus – this does not form part of the aggregated annualised wage for the purposes of the Agreements

[4] As a result of the submissions provided by the Applicant, I am satisfied that employees will be better off overall under the Agreement when receiving an Aggregated Annualised Wage.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2019. The nominal expiry date of the Agreement is 1 January 2022.

COMMISSIONER

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