Ecowise Australia Pty Ltd T/A ALS Water

[2019] FWCA 2187

[2019] FWCA 2187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ecowise Australia Pty Ltd T/A ALS Water
(AG2018/6040)

ALS WATER RESOURCES GROUP ENTERPRISE AGREEMENT 2018

Scientific services
COMMISSIONER PLATT	ADELAIDE, 5 APRIL 2019

Application for approval of the ALS Water Resources Group Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the ALS Water Resources Group Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ecowise Australia Pty Ltd T/A ALS Water. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 1 March 2019.

[3] On 1 March 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.

[4] The Applicant has submitted an undertaking in the required form dated 29 March 2019. The undertaking deals with the following topics:

•  Clause 4.1.1 of the Agreement shall be read as follows:

“Ordinary hours for day work employees will be worked between 7:00am and 7:00pm. The Early Morning Shift allowance will not apply. Instead, employees required to start work before 7:00am will be paid overtime in accordance with clause 4.2.

The automated process described in clause 4.1.2.3 of the Agreement will also be run each pay cycle for day work employees whose ordinary hours finish after 6:00pm. If in respect of any of those employees the earnings under the relevant Award would be greater, the shortfall amount plus 5% will be paid to the employees in that pay cycle.”

•  Clause 4.1.2.1 of the Agreement shall be read as follows:

“Afternoon shift means a shift finishing after 6:00pm and at or before midnight.”

•  Clause 4.1.2.2 of the Agreement shall be read as follows:

“Night shift means a shift finishing after midnight and at or before 8:00am.”

•  Clause 4.1.2.3 of the Agreement shall be read as follows:

“In relation to the automated process described in clause 4.1.2.3 of the Agreement, the “additional amount” to be paid to employees will be the shortfall amount plus 5%.”

•  Clause 4.2.1 of the Agreement shall be read as follows:

“Overtime will also be paid for hours worked outside the ordinary hours prescribed in clause 4.1.1.”

•  Clause 5.2 and 5.3 shall be read as follows:

“The annual leave and personal leave entitlements under the Agreement are in accordance with the National Employment Standards. The annual leave entitlement is four weeks of paid leave for each year of service with an additional week for a seven day shift worker who is regularly rostered to work on Sundays and public holidays.”

[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. The bargaining representatives did not express any view on the undertaking.

[6] 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.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] The ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)”, 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.

[9] 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.

[10] 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 31 August 2022.

COMMISSIONER

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