ECL Group Australia Pty Ltd T/A ECL Group
[2019] FWCA 7782
•13 NOVEMBER 2019
| [2019] FWCA 7782 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
ECL Group Australia Pty Ltd T/A ECL Group
(AG2019/3490)
ECL Group New South Wales Operations Agreement
| Manufacturing and Associated Industries | |
| DEPUTY PRESIDENT BULL | SYDNEY, 13 NOVEMBER 2019 |
Application for approval of the ECL Group New South Wales Operations Agreement.
An application (Form F16) has been filed by ECL Group Australia Pty Ltd T/A ECL Group (the employer), for the approval of an enterprise agreement known as the ECL Group New South Wales Operations Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.
The Commission raised with the employer that pursuant to clause 9.3 – Travel – Transit Times of the Agreement the employer only appears to pay employees for travel time where an employee start/ends at a different work site where the travel exceeds 30 minutes. This appears to differ from clause 32.4 of the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). The Award provides payment for travelling time for all time reasonably spent by an employee in reaching and/or returning from the job which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employee’s usual workplace, or any fares reasonably incurred by the employee or which would have been incurred by the employee had the employee not used their own means of transport.
The employer confirmed that clause 9.3 of the Agreement states that up to one hour per day is to be in the employee's own time in relation to the transit and travel times, depending on the distance and time from the workplace. A maximum of 30 minutes will be deducted at the start and end of each shift to reflect transit and/or travel to and from the workplace. The employer confirmed the clause does not apply to employees when they are ‘on call’.
The employer submitted that clause 9.3 of the Agreement is not less beneficial than the Award. At clause 32.4(a) of the Award, where an employee is required to start and/or finish work at a job away from the employer's usual place of work, they must be paid the entitlement as prescribed by the Award.
The employer also submitted that it does not require employees to start and/or finish work away from the employer's New South Wales branch. Rather, the employer intends to confer a benefit on all its employees, allowing an employee to travel directly to a work site from home, rather than travelling from home to the employer's New South Wales branch and then to a work site.
The employer submitted that if employees were required to commence work from the its New South Wales branch, the time taken to travel from home to the New South Wales branch would be unpaid and would likely be greater than 30 minutes on average. As a result, employees who elect to travel directly to a work site are likely to be saving time, leaving home later and arriving home earlier than if they were required to return to the New South Wales branch.
The Commission also raised with the employer that clause 15 – On Call of the Agreement appears to provide an ‘on call’ system, by providing an ‘on call’ allowance. This appears to be less beneficial than clause 40.5 - 40.6 of the Award, which is silent on an ‘on call’ system, but states that employees standing by should be paid at ordinary rates.
The employer confirmed that clause 15 – On Call of the Agreement states that the employer has a contractual obligation to provide a 24 hour ‘on call’ response to customer breakdowns. Where a New South Wales employee is ‘on call’, they receive an ‘on call’ payment. The employer confirmed that employees will be entitled to a $325.00 per seven-day week or $46.43 per day for being ‘on call’.
The employer also provided undertakings regarding redundancy payments, wage rates and increases, and shift allowances where ordinary hours of work are altered.
The undertakings are attached at the end of the Agreement. I am satisfied pursuant to s.190(3) of the Act that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.
Subject to the undertakings and the considerations referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The employee bargaining representative’s views were sought regarding the undertakings provided by the applicant in accordance with s.190(4) of the Act.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 31 March 2021.
DEPUTY PRESIDENT
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