Duggans Pty Ltd
[2009] FWA 149
•27 AUGUST 2009
[2009] FWA 149 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2009/603)
DUGGANS PTY LTD PRECAST DIVISION EMPLOYEE COLLECTIVE AGREEMENT 2009
Building, metal and civil construction industries | |
SENIOR DEPUTY PRESIDENT WATSON | SYDNEY, 27 AUGUST 2009 |
Application for approval of the Duggans Pty Ltd Precast Division Employee Collective Agreement 2009.
[1] An application has been made for approval of an enterprise agreement known as the Duggans Pty Ltd Precast Division Employee Collective Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Duggans Pty Ltd. The agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Accordingly, when considering whether to approve the Agreement, I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] 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. It is noted that the agreement departs from the terms of the National Building and Construction Industry Award 2000, 2 most notably in replacing the array of award allowances with a single enterprise allowance rate. I am satisfied, having regard to the incidence of the conditions upon which the award allowances are payable, the level of the enterprise allowance and the fixation of wage rates in excess of those in the relevant pay scale (which incorporate the industry, tool and special allowances and the follow the job loading) that, on balance, these arrangements are not detrimental to employees covered by the agreement. Having regard to these matters and the other terms of the agreement, I am satisfied that the agreement does not or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement.
[4] The agreement contains a provision permitting its variation, without reference to the requirements for variation under Division 7, Part 2-4 of the Act, preventing satisfaction of the no-disadvantage test which applies in the bridging period. To remedy this situation, I have sought and obtained a written undertaking from the employer in these terms:.
“As requested at the Fair Work Australia hearing on Wednesday, 26th August 2009, Duggans Pty Ltd undertakes that Variations to the agreement in accordance with clause 31 will only be made in accordance with Division 7, Part 2-4 of the Fair Work Act 2009 and will have effect only if approved by Fair Work Australia.”
[4] Approval of the agreement is subject to this undertaking.
[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 September 2009. The nominal expiry date of the Agreement is 2 September 2012.
SENIOR DEPUTY PRESIDENT
Appearances:
B Hardy for Duggans Pty Ltd.
S Van Kastel,employee representative.
A Marlor for the Tasmanian Chamber of Commerce and Industry.
Hearing details:
2009.
Sydney and Hobart (video hearing):
August 26.
1 Item 2, Part 1, of Schedule 2.
2 AP790741.
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