Downer EDI Works Pty Ltd

[2019] FWCA 5556

[2019] FWCA 5556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2018/7281)

DOWNER EDI WORKS PTY LTD SOUTH AUSTRALIAN ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 9 AUGUST 2019

Application for approval of the Downer EDI Works Pty Ltd South Australian Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd South Australian Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 July 2019.

[3] On 17 July 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

Undertaking

[4] The Applicant has submitted an undertaking in the required form dated 8 August 2019. The undertaking deals with the following topics:

•  Amending the hourly rate for Technician Level 1 to $24.46 per hour.

•  Providing adult apprentices for years 1 to 3 an hourly rate of pay of 2% higher than the base rate plus allowances applicable under the Manufacturing and Associated Industries and Occupations Award 2010 or the Building and Construction General On-site Award 2010.

•  Providing existing employees who become adult apprentices will retain their hourly rate payable immediately before commencing the adult apprenticeship, subject to varying qualifying periods of service, until such time as the adult apprentice rate becomes higher.

•  Providing a definition of ‘adult apprentice’.

•  Providing casual employees who, but for the Agreement, would be covered by the Asphalt Industry Award 2010 or the Manufacturing and Associated Industries and Occupations Award 2010, with overtime, weekend and public holidays rates of no less than as provided by the awards.

•  Providing casual employees with a minimum of four hours’ pay per engagement.

•  Providing that no more than eight ordinary hours shall be worked in any one day.

•  Providing junior employees with an hourly rate of 2% higher than the base rate plus applicable allowances that would be paid under the applicable award.

•  Providing that no junior employees will be required to perform work in a foundry.

•  Providing that employees required to work on a gazetted public holiday have a right to elect to receive payment at double time and a half, or at time and a half and accrue an equal amount of time off during normal working hours in lieu (TOIL). Accrued TOIL is to be paid out at the employee’s ordinary rate upon termination.

•  Providing employees who, but for the Agreement, would be covered by the Asphalt Industry Award 2010, with annual leave loading at the higher of the Award or Agreement rate.

•  Providing employees who would normally be rostered to shift work during a period of annual leave and, but for the Agreement, would be covered by the Manufacturing and Associated Industries and Occupations Award 2010 or the Building and Construction General On-site Award 2010, with annual leave loading at the higher of the Award or Agreement rate.

•  The Applicant undertakes to perform a weekly pay review of employees who are not a Leading Hand and, but for the Agreement, would be covered by the Building and Construction General On-site Award 2010, if the Agreement rate is lower than 15% above the Award, such employees will be paid at the Award rate plus $15.00, with the additional amount being paid into the following pay period.

•  The Applicant undertakes to perform a weekly pay review of employees classified as Leading Hand/Foreman Level 3 and, but for the Agreement, would be covered by the Building and Construction General On-site Award 2010, if the Agreement rate is lower than the Award, such employees will be paid at least the Award rate plus $15.00, with the additional amount being paid into the following pay period.

•  The Applicant gives assurance that an employee or employees involved in a grievance or dispute may appoint another person or organisation to accompany or represent them at any stage in the dispute resolution procedure.

•  The Applicant gives assurance that parental leave will operate in accordance with the National Employment Standards.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act.

[6] On 24 July 2019 Mr Sellwood, an employee bargaining representative raised issues concerning the BOOT analysis distributed to employees by the Applicant, the applicable casual rates, and the distribution of a PowerPoint presentation the Applicant gave concerning the Agreement.

[7] In addition the AWU contented that the CFMEU did not satisfy the Act’s requirements to be noted as being covered by the Agreement in accordance with s.201(2) of the Act.

[8] On 9 August 2019, I conducted a hearing in respect of these issues.

[9] During the hearing Mr Sellwood was provided with further information about the effect of the Undertaking and the distribution of the pre-Approval material. Mr Sellwood indicated his concerns had been appropriately addressed

[10] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

Coverage of the Construction, Forestry, Maritime, Mining and Energy Union

[11] The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[12] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has also contended that it was a bargaining representative for the Agreement, and has given notice under s.183 of the Act that it wants the Agreement to cover it. The AWU opposed this application on the basis that the CFMMEU did not have constitutional coverage to enrol the persons it claimed as members.

[13] The parties provided written submissions and the matter was argued at the hearing on 9 August 2018.

[14] The CFMMEU through Mr Stapleton provided evidence that it has five members who were engaged in duties including the operation of rollers, graders and bobcat sweepers. This position was not in dispute. The applicant and the Unions accepted that these duties would fall under the classifications contained in the proposed Agreement, and that these duties would form the major part of the activities of those members (accepting that the exact duties would depend on the work required on the day)

[15] There was no dispute that the roles detailed in the CFMMEU’s Rule 2(E)(a) 1 applied generally and not in respect of a particular industry. This is consistent with the decision in Re Coldham; Ex Parte Australian Workers Union.2

[16] The AWU contended that I could not be satisfied that the roles described by Mr Stapleton met the primary purpose test described in CFMEU v CSBP Limited. 3 In CSBP it was argued that a Process Technician (who the Court found performed duties more sophisticated than contemplated by the Union’s rules) would fall within its coverage if they performed even one function covered by the union roles (e.g. turning on an electric switch). Understandably the Court rejected this construction and suggested a ‘primary purpose test’ where the totality of the employee’s duties were considered.

[17] In this case it appears that the application of the primary purpose test would not alter the position that the employees perform tasks covered by the proposed Agreement.

[18] The remaining issue is whether the duties of the five members fall within the CFMMEU coverage rule. The AWU contended that the rule should be construed narrowly and that engine driver means only ‘train driver’. The CFMMEU contended that the rule should be read more broadly and submitted that position was consistent with the decisions in The Aluminium Industry (Commonwealth Aluminium Corporation Limited) Award 1971 and Australian Workers’ Union and the Federation Engine Drivers’ and Firemen’s Association of Australasia; 4 FEDFA Re-Registration Case;5 Baines Transport;6 and FEDFAWA v Archibald.7The AWU contended that an expansive view could result in taxi drivers being eligible to join the CFMMEU.

[19] The first of those cases concerned the FEDFA (one of the CFMMEU’s predecessors) and coverage of drivers of Haulpaks and Water Carts at the Weipa mine site. Senior Commissioner Taylor found that the FEDFA’s coverage included drivers of a range of machines (subject to it being their main function) which included loaders, rollers, forklifts and bob-cats. This supports the CFMMEU’s contention that Rule 2(E)(a) should not be construed narrowly.

[20] In the FEDFA Re-Registration Case the full bench, in discussing the meaning of the term ‘engine drivers’, concluded that the term was not self-explanatory and included plant operators. 8 This decision indicates that the term should not be read as only applying to train drivers.

[21] In Baines Transport, Commissioner Wilks found that concrete pump operators and hosemen were covered by Rule 2(E)(a).

Conclusion

[22] Having considered the material before me I have formed the view that Rule 2(E)(a) should not be construed so narrowly as to exclude persons whose principal task is the operation of rollers, graders and bobcat sweepers, and accordingly I find that the CFMMEU is entitled to represent those persons employed by the Applicant, and is thus entitled to be a bargaining representative for the Agreement. Having given notice under s.183 of the Act that it wants the Agreement to cover it, in accordance with s.201(2) of the Act I note that the Agreement covers the Construction, Forestry, Maritime, Mining and Energy Union.

[23] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[24] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE504822 PR711185>

 1 R2019/89 105N-FED.

 2 [1984] HCA 62.

 3 [2012] FCAFC 48.

 4   C No. 1578 of 1971.

 5   [1958] AR NSW 689.

 6   C No. 22372 of 1997.

 7   (1963) 43 WAIG 348.

 8   [1958] AR NSW 689 at 695.