Empire Contracting Pty Ltd

[2021] FWCA 4651

[2021] FWCA 4651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Empire Contracting Pty Ltd
(AG2021/6096)

EMPIRE CONTRACTING PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2021 - 2025

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 30 JULY 2021

Application for approval of the Empire Contracting Pty Ltd and Employees Enterprise Agreement 2021 - 2025.

[1] Empire Contracting Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Empire Contracting Pty Ltd and Employees Enterprise Agreement 2021 - 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On 14 July 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

•  The Agreement did not describe or define an employee as a shiftworker for the purposes of the National Employment Standards;

•  Clauses 29.9 and 29.12 - Annual Leave, 32.2 - Community service leave, 33.8 - Public holidays, 41.7 - Withholding of NES entitlements and 42.3 - Redundancy were inconsistent with the National Employment Standards however this concern is addressed in the effective NES precedence clause at clause 8.1 of the Agreement; and

•  Better off overall concerns with respect to CW1 (Probationary Asbestos Removal Worker) employees and clause 16 - Part-time employees.

[3] The Applicant has submitted an undertaking in the required form dated 27 July 2021. The undertaking deals with the following topics:

•  What the definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  Provides that part-time employees are entitled to all of the entitlements provided in Clause 11 of the Building and Construction General – On Site Award 2020.

•  Addresses better off overall concerns regarding casual conversion, higher duties, inclement weather and rostered days off.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought his view in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 July 2025.

COMMISSIONER

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