F17 Formwork Pty Ltd

[2021] FWCA 7178

[2021] FWCA 7178

FAIR WORK COMMISSION

DECISION

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

F17 Formwork Pty Ltd
(AG2021/8762)

F17 FORMWORK ENTERPRISE AGREEMENT 2021

Building services
COMMISSIONER PLATT	ADELAIDE, 17 DECEMBER 2021

Application for approval of the F17 Formwork Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the F17 Formwork Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by F17 Formwork Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 December 2021.

[3] On 17 December 2021, 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 through the provision of an undertaking.

[4] There are two National Employment Standards (NES) issues that require comment:

•  Clause 27.4 of the Agreement provides that annual leave loading is not payable on leave taken in advance, annual leave that is cashed out, or pro rata leave on termination. Section 90(2) of the Act provides that if an employee’s employment ends and they have a period of untaken but accrued annual leave, the employer must pay the employee the amount they would have received had they taken that leave. Section 93(2)(c) of the Act requires that a cashing-out term must require that the employer pay the employee the amount they would have received had they taken that leave.

•  Clause 34.7 of the Agreement provides that if an employee does not provide the required notice, the employer may deduct an amount from any remaining payment due to the employee. This will be inconsistent with the NES to the extent that it allows for the employer to make deductions from NES entitlements (e.g. annual leave).

[5] The Applicant has provided an undertaking that acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[6] The Applicant has submitted an undertaking in the required form dated 17 December 2021. The undertaking deals with the following topics:

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

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  Time off in lieu of overtime (TOIL) will be provided in accordance with clause 29.12 of the Building and Construction General On-site Award 2020.

•  Work performed during an “early morning shift”, as defined in the Award, will be subject to a penalty rate of 150% of the ordinary hourly rate.

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

[8] 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.

[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 after the date of approval of the Agreement. The nominal expiry date is 31 May 2024.

COMMISSIONER

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